Not Yet in Print (responsa published by the Responsa Committee, but not yet in bound collections)

NYP no. 5769.6

CCAR RESPONSA

5769.6

Circumcision of a Transgender Female

She’elah

I have worked with a woman in her late twenties this past year to prepare her for conversion and found her to be an excellent candidate. Late in the process, but before the conversion ceremony, she revealed to me that her sex assignment at birth was male and that she had been living a life of gender ambiguity from childhood. About two years before I met her, she chose to live exclusively as a woman. She sought and received legal status as a woman from the Commonwealth of Massachusetts, a process which requires certification of mental health by suitable professionals. She has begun and continues female hormone therapy. She has not had sex reassignment surgery and such surgery may or may not be part of her future. She has uncircumcised male genitalia.

I considered whether I would ask her to undergo milat gerim (circumcision for proselytes) as part of her conversion process. I concluded that I would not require milah in her case because her entire involvement with the synagogue, her very identity within the Jewish community, has been as a woman. I accept her gender as female and, of course, milah is not required of women. I have several questions for the Committee. What standards should Reform rabbis and congregations apply to accepting the gender assignment of members of our communities and those who wish to attach themselves to our communities? To the extent that we regard a requirement of milah and hatafat dam berit to be under the purview of rabbinic authority, should we require them of transgender women with male genitalia? What is the attitude of Jewish law, as understood in a Reform context, toward transgender people in general? In the past, the mental health of transgender people has been regarded as suspect by society in general and, on at least one occasion, by the Responsa Committee.[1] Have changes in medical understanding of gender identity and the social acceptance of transgender people affected the ways in which we apply Jewish law? (Rabbi Jeffrey Goldwasser, North Adams, MA)

Teshuvah

We want to divide your query into two separate questions. The first of these concerns our general attitude toward the issue of “transgender” and of the position of transgender people in our community. The second deals with the more specific issue that you resolved in this case: should a Reform rabbi who normally requires circumcision for male converts[2] insist upon that requirement when the candidate is a transgender female?

1. On Transgender. “Transgender,” as defined by the American Psychological Association, “is an umbrella term used to describe people whose gender identity (sense of themselves as male or female) or gender expression differs from that usually associated with their birth sex.”[3] Our attitude concerning transgender has undergone a significant change during the last several decades. Our general approach to the subject, however, has remained constant: we have turned to science, in particular to the mental health professions, to learn about a phenomenon that, to say the least, has been imperfectly understood. There was a time, not so long ago, when most scientists held that transgender people suffered from a mental or psychological illness. To this day, the authoritative fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) defines “a strong and persistent identification with the opposite gender” as Gender Identity Disorder (GID), which like all other disorders involves a specific etiology, set of symptoms, and course of treatment.[4] This theme has not entirely disappeared from the public discourse over transgender. As you note, at least some units of government continue to require “certification of mental health by suitable professionals” before persons can be legally accepted as belonging to a gender opposite from their birth sex. Previous Reform responsa on the subject reflected this broad scientific consensus. In recent years, GID has become the focal point of a growing controversy, with many mental health professionals arguing that a difference between a person’s gender identity and his or her birth sex does not in and of itself constitute a “disorder.”[5] As of this writing, the DSM is undergoing a revision, and it is quite possible that “Gender Identity Disorder” will either disappear entirely or be substantially redefined in its next (fifth) edition.

Whatever the outcome of that controversy, its very existence affords us the opportunity to rethink the “general approach” described above. What we now know about transgender persuades us that we should consider it not as a scientific or bioethical issue[6] but as a personal and communal one. Our stance is not to be determined by the findings of mental health professionals but by our understanding of our religious duty as Jews. In other words, the question we should ask is not whether transgender is a “disorder” but rather how does Torah teach us to respond to transgender persons as human beings and as members of the Jewish people?

When we search for guidance in our texts, we find something of a parallel to the transgender person: the androgynos, the individual who (as the Greek term suggests) displays both male and female physical characteristics. We read in Mishnah Bikurim 4:1 that the androgynos is classified in some respects as a male, in some respects as a female, in some respects as both, and in some respects as neither. The rest of that chapter[7] works out the details that give life to these general statements, charting the ritual and legal status of the androgynos and defining that person’s role and duties under the halakhah. The Rabbis, it seems, were aware that not every individual falls clearly within the established gender boundaries, and the category of androgynos served as a special designation encompassing those who straddle the lines. To put this another way, although the traditional Jewish world view presumes the existence of two genders and assigns many religious and ritual responsibilities accordingly, the Sages found a place for this person, who otherwise would not fit within their conceptual world. To us, the great message of these texts is the duty of inclusion: like the Rabbis, we, too, are obligated to find a place within our midst for the outsider, the Jew who does not seem to fit within the established boundaries and social categories upon which our communities are normally based.

On the other hand, the parallel is not absolute; the androgynos is not “transgender.” The Rabbis had no concept of “gender,” understood as a personal sense of identity separate and apart from birth sex. In Rabbinic thought, a person’s sex assignment is that person’s gender; it is an empirical fact, established by the physical signs (the genitalia) that ordinarily associate us as either male or female. The problem is that, because the androgynos displays both male and female genitalia, his/her sex assignment – for the Rabbis, the same thing as “gender” – cannot be determined through empirical observation. And the Rabbis must find a way to make that determination, since one’s gender establishes many of one’s obligations under traditional Jewish law. Hence the debates in the halakhic literature over the nature of the androgynos: is this person a male, a half-male/half-female, or a separate gender that is neither male nor female?[8] The predominant view is that the androgynos is a case of safek, of factual doubt: perhaps male, perhaps female,[9] so that his/her ritual and legal status is set accordingly.[10] By contrast, the individual of whom you speak in your she’elah is in the eyes of Talmudic law unquestionably male and would bear all the responsibilities of a male under the traditional halakhic system.

For Reform Jews, committed to the principle of gender equality, this debate holds little practical significance. We differ from the Rabbis and from contemporary Orthodox Judaism in that, in our communities, men and women perform the same ritual roles. We therefore have no need as a community to determine the “correct” gender of any individual or to question any person’s expressed gender identity. We accept the person as that individual presents him- or herself, as male, female, or transgender. The person of whom you speak has chosen “to live exclusively as a woman.” That choice, which determines her gender identity, is enough for us, we accept her accordingly. Upon her conversion she will be “a Jew in all respects”;[11] our concern, quite simply, is to welcome her into the midst of the community of Israel.

2. Circumcision for a Transgender Female Jew by Choice. The fact that we accept this person as a woman, however, does not necessarily answer our second question. You waived the requirement of milat gerim in this case on the grounds that “milah is not required of women.” That decision assumes that gender identity, the person’s subjective sense of self, is the determining factor in this question. In our view, however, the objective fact of birth sex is the more compelling consideration. While the Biblical sources of this mitzvah (Genesis 17:10-11 and Leviticus 12:2-3) make it clear that only a male (zakhar) is to be circumcised, they describe the essence of that ritual as the removal of the foreskin (basar orlato). This individual, who possesses a foreskin, is therefore a member of that group of people who are subject to this ritual. Let us be clear: we accept this individual as a female because she presents herself as such and because we understand today – as few could possibly have imagined until very recently in human history – that one’s gender identity is not automatically determined by one’s birth sex. But the objective reality of her birth sex (which, as we have seen, is a very different thing from “gender identity”) does make her one of those who according to our tradition are to carry ot berit, the sign of the covenant of Abraham and of Sinai.[12] Had she undergone sex reassignment surgery prior to her conversion – in other words, had she altered that objective reality through surgical means to bring her sex in line with her gender identity – circumcision would obviously not have been required of her.[13] In the absence of that surgery, we are persuaded that the better response is to urge milah in cases such as this.

The above reflects our deep devotion to the mitzvah of circumcision[14] as a powerful act of Jewish identity that links our modern-day community to the earliest generations of our people. There is no reason in principle to exclude a person from the opportunity to participate in this mitzvah simply because she is transgender. We should recall that the Rabbis, in their efforts to determine the status of the androgynos, included that individual in the community of those who are to be circumcised.[15] We Reform Jews are at our best when we, too, practice the policy of inclusion, and we should remember that as we work to find a place for transgender people within our own religious community.[16]

NOTES

 

 

  • The Central Conference of American Rabbis (CCAR) has held since 1893 that the traditional conversion rites are non-obligatory. See CCAR Yearbook 3 (1893), p. 36, reprinted in American Reform Responsa (ARR), no. 68, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=68&year=arr. This resolution has never been repealed by the CCAR, but it has been modified by Divrei Giyur (see below in this note) and by a number of Reform responsa. See our responsum no. 5756.13, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=13&year=5756 , particularly at notes 35-36, for references to these responsa. 5756.13 also offers a detailed critique of the scholarship adduced in support of the 1893 resolution. Meanwhile, over the past several decades the stance of our movement toward those rites has become much more positive. Today, many Reform rabbis require milat gerim, circumcision for adult male converts. See Divrei Giyur: Guidelines for Rabbis Working with Prospective Gerim, adopted by the Central Conference of American Rabbis, June, 2001, section 8b; http://www.ccarnet.org/Articles/index.cfm?id=215&pge_prg_id=3818&pge_id=1637 (accessed January 26, 2010).

 

 

 

  • See the American Psychological Association’s Answers to Your Questions (note 2, above): “This diagnosis is highly controversial among some mental health professionals and transgender people. Some contend that the diagnosis inappropriately pathologizes gender variance and should be eliminated.” A psychological condition, in this view, is to be characterized as a disorder “only if it causes distress or disability.” On the efforts to insure that the next edition of the DSM omits GID, see Lois Wingerson, “Gender identity Disorder: Has Accepted Practice Caused Harm?” Psychiatric Times, May 19, 2009, http://www.psychiatrictimes.com/display/article/10168/1415037?verify=0 (accessed January 18, 2009).

 

  • As an example, see our responsum no. 5757.2: “In Vitro Fertilization and the Status of the Embryo” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5757 ): “given our positive attitude as liberal Jews toward modernity in general, it is surely appropriate to rely upon the findings of modern science, rather than upon tenuous analogies from traditional sources, in order to render what we must consider to be scientific judgments” (italics in original). In this case, the attitude we take toward transgender people is based upon an ethical rather than a “scientific” judgment.

 

  • Scholars doubt that the fourth chapter of M. Bikurim formed part of the original Mishnah. While present in some manuscripts and printed editions, it is missing from others. Its contents appear to have been taken from Tosefta Bikurim 2:3-7. See Yaakov N. Epstein, Mavo lenusach hamishnah (Jerusalem: Magnes, 1948), 976, and Chanokh Albeck’s comments in his edition of the Mishnah (Tel Aviv-Jerusalem: Mosad Bialik-Devir, 1957), vol. 1, 307.

 

  • This latter is the opinion of R. Yose in Tosefta Bikurim 2:7: “the androgynos is in a unique category (beriyah le`atzmo).”

 

  • This is the position of Maimonides (Yad, Milah 3:6; Ishut 2:24; Nezirut 2:11; Chagigah 2:1, and elsewhere) and the Shulchan Arukh, Orach Chayim 331:5 (see Mishnah Berurah ad loc., note 18). Other authorities hold that the androgynos is half-male and half-female, and some describe him/her as a third gender, neither male nor female. See Encyclopedia Talmudit, 2:54ff.

 

  • For example, the androgynos observes all positive ritual commandments that, because they are dependent upon the time of day or of the year, are traditionally incumbent upon men and not upon women. The androgynos observes them because he/she is possibly a male and therefore commanded to do so. By the same token, the androgynos does not recite the benediction over the performance of these mitzvot, because he/she is possibly a female and therefore not commanded to observe these mitzvot. Yad, Avodah Zarah 12:4 and Tzitzit 3:9. See at note 15, below.

 

  • Taval ve`alah harei hu keyisra’el lekhol devarav; B. Yevamot 47b.

 

  • See B. Keritot 9a: our male ancestors, the Rabbis taught, were required to undergo circumcision and immersion, while the women were required to undergo immersion, prior to the giving of the Torah. Today’s proselyte reenacts their experience when he or she enters the covenant.

 

  • A male proselyte whose penis has been severed requires only immersion (tevilah) in order to convert to Judaism; Tosafot, Yevamot 47b, s.v. derabbi yose; Shulchan Arukh Yoreh De`ah 268:

 

  • On berit milah as a mitzvah in Reform Judaism, see Simeon J. Maslin, Gates of Mitzvah (New York: CCAR, 1979), p. 14. On our evolving position with respect to milat gerim, see the sources in notes 10 and 11, above.

 

  • That the androgynos is circumcised is declared in Yad, Milah 1:7 and Shulchan Arukh Yoreh De`ah 262:3, on the basis of the sugya in B. Shabbat 135a. The authorities are in dispute as to whether the traditional berakhah (benediction) should be recited over that act. Rambam (Yad, Milah 3:6, in a ruling adopted by Shulchan Arukh Yoreh De`ah 265:3) holds that no benediction is recited because the androgynos is not unquestionably male (eino zakhar vada’i). R. Avraham ben David of Posquierres objects: the circumcision of an androgynos is a matter of uncertainty over an element of Torah law, and in all such cases of doubt we rule stringently (B. Beitzah 3b). Thus, a berakhah should be required (Hasagat Haravad, Milah 3:6).

 

  • We recognize, of course, that in any particular case the mara de’atra, the community rabbinical authority who supervises the conversion process, may judge the prospect of circumcision to be exceptionally difficult or stressful to a transgender female conversion candidate. We would support the rabbi’s decision not to demand circumcision of such a candidate as a proper application of the CCAR’s 1893 resolution on conversion rites (see note 2). We will not attempt to devise a precise formula to define the term “exceptionally difficult.” That is and must remain a matter left to the judgment of the mara de’atra, just as it is left to him or her to evaluate the motivations and sincerity of the prospective convert. In the latter case, says R. Yosef Karo, the decision must be left to the discretion of the authorities in charge (hakol lefi re’ut einei beit din; Beit Yosef to Tur, Yoreh De`ah 268). The same is true here.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5769.7

CCAR RESPONSA

5769.7

Dissection and Cruelty to Animals

She’elah.

I am the rabbi for a Reform Jewish Day School. The science curriculum at our school calls for 7th graders to dissect a worm and a tree frog. While students are given an “opt out” option for this assignment, the underlying issue of the appropriateness of dissection has become a topic of conversation. Undoubtedly we expect our students to have the most outstanding science education available. From this perspective we are inclined to follow the guidelines and standards of any relevant decision-making bodies in the scientific community. At the same time considerations of bal tashchit and tza`ar ba`alei chayim have been raised as Jewish arguments against dissection. How do these considerations play out in a Reform Jewish Day School committed to integrating General Studies and Judaics? (Rabbi Micah Lapidus, Atlanta, GA)

Teshuvah.

We Reform Jews have embraced the fundamental values of our modern scientific culture. Unlike some religious traditions, we perceive no divide between the findings of contemporary science and our understanding of God and the universe. Reform Jewish thought seeks to transcend the age-old conflict between faith and reason or between Torah and mada (science, “worldly knowledge”[1]). We see each of these as a legitimate, complementary expression of the human intellect: while science enables us better to understand the world in which we live, our religious values help teach us the moral ends to which our science must strive.

How then shall we respond when the demands of science apparently do conflict with those of our faith? To choose one set of values at the expense of the other will not do; such a simple and neat solution would contradict our commitment to the truth of both sides of the equation. The better course, we think, is to reaffirm that two-sided commitment to both faith and science and to locate the best balance between these sources of knowledge when they seem to pull us in opposite directions. To accomplish this balance is never an easy task; it is certainly neither simple nor neat. The effort to do so, however, is truly what Reform Judaism is all about.

Your question asks us to address just such an apparent conflict: does the dissection of animal specimens, an accepted method of science education, violate the traditional Judaic prohibitions of wanton destruction of the environment and the infliction of suffering upon animals? Let us therefore consider both the “Judaic” and the “scientific” aspects of the dispute.

  1. Bal Tashchit: The Prohibition Against Wanton Destruction. We read in Deuteronomy 20:19-20: “When in your war against a city you have to besiege it a long time in order to capture it, you must not destroy (tashchit) its trees, wielding the ax against them. You may eat of them, but you must not cut them down. Are trees of the field human, to withdraw before you into the besieged city? Only trees that you know do not yield food may be destroyed; you may cut them down for constructing siege works against the city that is waging war on you, until it has been reduced” (Deuteronomy 20:19). From here the tradition deduced the prohibition against cutting down fruit-bearing trees in peacetime as well as in war.[2] Moreover, it extends this prohibition, called bal tashchit (“do not destroy”) to other useful objects, such as food, buildings, household implements, and clothing.[3] This mitzvah teaches us, say some authorities, to perfect our moral character, “to train our souls to love the good and the beneficial… and to keep ourselves far from evil and destructive behavior.”[4] In our own day, the principle of bal tashchit has become a major foundation of Jewish environmental thought, supporting the ethic of conservation and care for the created universe.[5]

At the same time, the prohibition of bal tashchit is a limited one: tradition forbids us to destroy useful objects only derekh hashchatah, when the destruction is done for its own sake, undertaken for no good reason. We are permitted, however, to cut down fruit-bearing trees when they threaten to damage other trees, or if their wood is valuable,[6] or to secure some other useful purpose (to`elet).[7] This rule would apply, obviously, to other objects as well. Thus, even if we speak of bal tashchit as the basis of our ethical obligations toward the natural world, we must concede that in and of itself the principle cannot delineate the extent of that obligation. Before we can say that the principle forbids us to perform some specific act of destruction, we must first weigh the cost of that destruction against the potential benefits, economic and otherwise, we might gain from it.[8]

  1. Tza`ar Ba`alei Chayim: The Prevention of Cruelty to Animals. Our tradition associates this principle with several Biblical commandments, including the requirement to help unload an animal that has fallen under the weight of its burden (Exodus 23:5),[9] the prohibition against shackling a donkey and an ox to the same plow (Deuteronomy 22:10),[10] ritual slaughter (shechitah),[11] and the instruction to send away the mother bird when we take her eggs from the nest (Deuteronomy 22:6).[12] The Talmud debates whether the principle is derived from the Torah itself (mide’oraita) or based upon Rabbinic legislation (miderabanan).[13] What is the practical difference in these classifications? If we say that tza`ar ba`alei chayim is Toraitic, as most authorities do,[14] then the traditional halakhah might permit the violation of the laws of Shabbat in order to save an animal from suffering.[15] Yet we need not resolve that technical halakhic dispute in order to conclude that our tradition, which goes so far as to instruct us to feed our animals before feeding ourselves,[16] recognizes the humane treatment of animals as one of our highest ethical duties.

Like bal tashchit, however, the principle tza`ar ba`alei chayim is not absolute. It does not apply “to matters of medicine or to other human needs.”[17] That is to say, so long as we can derive a legitimate benefit from the animal, tza`ar ba`alei chayim does not prevent us from using it for that purpose.[18] True, the tradition cautions that even if the benefit is a legitimate one, we ought not to derive it in a way that involves excessive cruelty (akhzariut) toward the animal.[19] The story is told that Rabbi (R. Yehudah Hanasi) once ignored the cries of a calf on its way to slaughter. “Go,” he said; “it was for this that you were created.” Heaven responded: “since he has shown no mercy to the calf, we shall afflict him with punishments (yisurin)” that abated only when he showed mercy toward other creatures.[20] The permit to slaughter animals for food, that is, does not allow us to treat them cruelly; we must show compassion toward them even in their pain. Yet we are permitted to slaughter them for food, which teaches that we are not forbidden to use animals for our legitimate benefit even when doing so inevitably subjects them to a degree of suffering.

We learn from this that while bal tashchit and tza`ar ba`alei chayim are exalted ethical principles, it is often unclear just how either one applies to the real-life decisions we are required to make. Each of them must co-exist with – and is therefore limited by – other legitimate human needs. It is not enough, therefore, to invoke bal tashchit or tza`ar ba`alei chayim and to imagine that our decision has automatically been made. Rather, in every case of potential conflict, we must draw a careful balance between these principles and the legitimate[21] human purposes with which they seem to collide.

  1. Dissection and Science Education. Let us then turn to those “human purposes” on the other side of the conflict. There is no question that the acquisition of scientific knowledge is a “legitimate human need.” Nor is there any question in the halakhic tradition that legitimate scientific experiments may be performed on animal specimens. In such cases, the authorities have ruled that the end clearly justifies the means and that the principles of bal tashchit and tza`ar ba`alei chayim do not stand in the way of scientific research. Nor, for that matter, does the desire to avoid “excessive cruelty,” so long as the specimens are euthanized as humanely as possible.[22] The only question is the importance of dissection in the science curriculum: do its benefits outweigh the environmental and ethical considerations we have discussed?

The answer to this question is, primarily, a disciplinary one. Just as we rely upon physicians to define “medicine,” to determine the importance or necessity of a particular course of treatment,[23] we must ask science educators just how essential dissection is to successful conduct of their practice. Are there satisfactory pedagogical alternatives to dissection? In this regard, we cite the latest statement on the subject by the (U.S.) National Science Teachers Association (NSTA):[24]

NSTA supports each teacher’s decision to use animal dissection activities that help students

  1. develop skills of observation and comparison,
  2. discover the shared and unique structures and processes of specific organisms, and
  3. develop a greater appreciation for the complexity of life.

It is essential that teachers establish specific and clear learning goals that enable them to appropriately plan and supervise the activities.

NSTA recognizes science educators as professionals. As such, they are in the best position to determine when to use – or not use – dissection activities. NSTA encourages teachers to be sensitive to students’ views regarding dissection, and to be aware of students’ beliefs and their right to make an informed decision about their participation. Teachers, especially those at the primary level, should be especially cognizant of students’ ages and maturity levels when deciding whether to use animal dissection. Should a teacher feel that an alternative to dissection would be a better option for a student or group of students, it is important that the teacher select a meaningful alternative. NSTA is aware of the continuing development and improvement of these alternatives.

Finally, NSTA calls for more research to determine the effectiveness of animal dissection activities and alternatives and the extent to which these activities should be integrated into the science curriculum.

The statement displays a certain ambivalence on the issue. It begins by listing the educational benefits of dissection. It then takes account of students’ “views” and “beliefs,” acknowledging their “right to make an informed decision” to opt out of dissection activities. It concludes by leaving the decision to the professional judgment of the individual teacher, and it calls for “more research” on the question, especially on the development of meaningful alternatives to dissection in the science curriculum. This ambivalence presumably reflects a spectrum of views within the Society over the proper response to ethical criticisms leveled against dissection. Individual educators, of course, will locate themselves more to one end or the other of that spectrum, and their views will accordingly be more definite and less equivocal. Still, the statement is the “official” expression of the opinion of the profession as a whole. And while it does attempt to give both sides of the dispute their due, it does not shrink from taking a stand. That stand, as we read it, recognizes that dissection clearly achieves the goals of the science curriculum and that “alternatives” might achieve those goals. In other words, the professional community of teachers of science regards dissection as the accepted (best) standard in science education, the “default mode,” even as it permits teachers to use alternatives for those students who for reasons of age, immaturity, or “beliefs” either should not or prefer not to engage in dissection activities.

  1. Science Education and Ethics in a Reform Jewish Day School. The standard of science education that we offer our students in Reform Jewish day schools should strive to meet the best standard as determined by the professional community of science educators. Like all professional standards, this one is subject to ongoing debate and revision. But so long as the professional consensus regards dissection as the best way to introduce students to the intricacies of animal biology, we would not support a ban on dissection in our own schools. Students should be allowed, as they are allowed in your school, to “opt out” of the dissection assignment, and the teachers can assign them “meaningful alternatives,” to use NSTA’s language. But dissection should not be prohibited for all students.

Some might argue that even if dissection corresponds to the “best” standard, we need not insist upon its use for our middle school students, most of whom are unlikely to major in biology when they attend college. We disagree with this argument, on two grounds. First, as we note at the outset of this responsum, our Reform Judaism affirms the value of modern science, and by “science” we mean the discipline as practiced by a community of trained professionals according to their best understanding of scientific method. Standards of science education that fall below that best understanding – “alternatives” that are “almost as good” – are incompatible with our conception of science and learning. Second, it is a bad idea for our schools to send the message that our younger students should be satisfied with less than the highest standard of science education. On the contrary, we should recognize that the experience of dissection might spur in our younger students a greater desire to study science in high school and beyond. That desire does not conflict in the least with the goals of Reform Jewish education.

Conclusion. For these reasons, we do not think that your school should remove dissection from its science curriculum. To put this in traditional Jewish terms, science education, conducted according to its best standards as defined by its professional practitioners, is a legitimate and worthwhile human activity. It is therefore not prohibited on grounds of bal tashchit or tza`ar ba`alei chayim, so long as the specimens are not obtained in a manner we would regard as cruel.

Our answer does not mean that we minimize the importance of those values in the study and practice of science. Indeed, precisely because we proclaim our commitment to both tradition and science, we Reform Jews ought never to say that Jewish values stop at the door of the laboratory or the classroom. The students of a Jewish school “committed to integrating General Studies and Judaics” should confront the challenges that these values pose to our thinking and our actions, and the school ought to integrate those challenges into its science curriculum. This issue, we think, affords some good opportunities to do just that. Some examples (hardly an exhaustive list):

(1) In addition to allowing the students to “opt out” of the dissection assignment, you might also teach this dispute as part of the biology class. You could introduce the students, those who participate in the dissection assignment as well as those who do not, to the Jewish ethical discourse on conservation of the ethical treatment of animals. Why do we care, as Jews, about these things, and in what textual language do we express and debate our concerns?

(2) The class could investigate the source of the specimens that are being used. How does that vendor obtain its specimens? Are the animals euthanized in a humane manner?

(3) You might compose a prayer for the class to recite before they begin the dissection assignment. That prayer might acknowledge we assume a serious ethical responsibility when we perform experiments upon God’s creatures, and it might express the sense of awe and humility that we experience when we explore the workings of nature.

 

NOTES

  1. This is a reference to the title of Norman Lamm’s important survey Torah Umadda: The Encounter of Religious Learning and Worldly Knowledge in the Jewish Tradition (Northvale, NJ: Jason Aronson, 1990). The effort to draw a satisfying balance between these two sources of knowledge, in other words, is not restricted to Reform Jews.
  2. B. Bava Kama 90b and Rashi, ad loc., s.v. af al pi she’eino rashai’; Yad, Melakhim 6:8.
  3. Yad, Melakhim 6:10, presumably based upon the statement of Rabbi Elazar in B. Bava Kama 91b and upon B. Shabbat 105b (“one who tears his clothing in anger…”; see Kesef Mishneh ad loc.), although Rambam may in fact read the latter source as dealing with the dangers of anger to one’s character development, rather than as an application of the principle of bal tashchit; see Yad, De`ot 2:3. On the other hand, Sefer Hachinukh, no. 529, applies this passage to both principles: the principle of bal tashchit and the condemnation excessive anger.
  4. Sefer Hachinukh, no. 529.
  5. For a few examples: Barry Freundel in Ellen Bernstein, ed., Ecology and the Jewish Spirit (Woodstock, VT: Jewish Lights, 1998), p. 73 (“Any discussion of Jewish law and the environment must begin with… Deuteronomy 20:19-20″); Eilon Schwartz, “Bal Tashchit: A Jewish Environmental Precept,” in Martin Yaffe, ed., Jewish Environmental Ethics: A Reader (Lanham, MD: Lexington Books, 2001), pp. 230-249; Coalition on the Environment and Jewish Life (COEJL), Bal Tashchit: the development of a Jewish environmental principle, http://www.coejl.org/learn/je_tashchit.php (accessed November 24, 2009)
  6. B. Bava Kama 91b-92a; Yad, Melakhim 6:8; Shulchan Arukh of R. Sheneur Zalman of Liady, Hilkhot Shemirat Guf venefesh Uval Tashchit, par. 15.
  7. “It is certainly permissible to cut down trees if one finds some useful benefit (to`elet) in doing so.” Sefer Hachinukh, no. 529.
  8. See Moshe Sokol in Hava Tirosh-Samuelson, ed., Judaism and Ecology (Cambridge, MA: Harvard University Press, 2008), p. 273.
  9. See Rashi to B. Shabbat 128b, s.v. tza`ar ba`alei chayim.
  10. R. Menachem Hameiri, Beit Habechirah, Bava Metzi`a 32a.
  11. We should note that the tradition does not say that shechitah was instituted solely as a means of humane slaughter or that its major purpose (ta`am) is to teach us to be kind toward animals. The roots of shechitah lie in the network of cultic practice that defined the Biblical priesthood; it is therefore more properly considered a ritual rather than an ethical law. We say in the text, rather, that the tradition “associates” shechitah with the ethical treatment of animals; that is, tza`ar ba`alei chayim and related arguments are sometimes cited along with priestly-ritual considerations as reasons behind the mitzvah. See, for example, Maimonides, Moreh Nevuchim 3:48.
  12. More Nevuchim ad loc.; Ramban, Commentary to Deuteronomy 22:6.
  13. B. Bava Metzi`a 32a-b. Those Talmudic and post-Talmudic authorities who hold that the principle is Rabbinic would interpret Exodus 23:5 and Deuteronomy 22:10 as asmakhta’ot, as textual supports or simply as mnemonic indicators of a law that, in fact, was created by Rabbinical enactment.
  14. Meiri (note 10, above); R. Asher b. Yechiel, Hilkhot HaRosh, Bava Metzi`a 2:29; Nimukei Yosef to Alfasi, Bava Metzi`a, fol. 17b (in the name of Alfasi and the “Geonim”); Isserles, Shulchan Arukh Choshen Mishpat 272:9; the Gaon of Vilna (Bi’ur HaGra, Shulchan Arukh Choshen Mishpat 272, no. 11). The position of Maimonides (Yad, Rotzeach 13:9) is a subject of controversy. However, in More Nevuchim 3:17 he explicitly declares tza`ar ba`alei chayim to be mide’oraita.
  15. Chidushei HaRitva, Bava Metzi`a 32a.
  16. B. Berakhot 40a.
  17. Isserles, Shulchan Arukh Even Ha`ezer 5:14.
  18. R. Yisrael Isserlein (15th-century Germany), Resp. Terumat Hadeshen, no. 105, explains this on the basis of the presumption that animals were created at least in part to serve human beings. After all, we do load burdens, even heavy ones, upon animals, even though this causes them discomfort, and we neuter our animals to serve our own needs, despite the pain the surgery causes them (B. Shabbat 110b and Chagigah 14b). We might add, moreover, that we do slaughter animals for food, even though the most “merciful” methods of slaughter inflict pain upon them. On this, see Yad, Tefilah 9:7, where Rambam contradicts his statement in Moreh Nevuchim 3:48 (note 11, above): if the purpose behind the commandment to send away the mother bird (Deut. 22:6) is to teach us mercy toward animals, why then did God permit us to slaughter them for food in the first place?
  19. Isserlein, note 18, above, cited in Isserles, note 17, above.
  20. B. Bava Metzi`a 85a, cited by Isserlein, note 18, above.
  21. How does one define “legitimate”? Here, too, the texts offer no precise, automatic definition, but they do suggest that there is some limitation to the permit – that is, not every conceivable purpose is sufficient warrant to override tza`ar ba`alei chayim. In this vein, we might mention the prohibition issued by R. Chaim David Halevy (20th-century Israel) against the wearing of fur obtained by way of the cruel treatment of animals (HaTzofeh, February 13, 1992, p. 7).
  22. One of the earliest statements to this effect is the ruling of R. Ya`akov Reischer (18th-century Germany), Resp. Shevut Ya`akov 3:71, on the question of experimentation: when the end in view has to do with medical knowledge, monetary benefit, or any other legitimate need (shum tzorekh), “it is not forbidden by either bal tashchit or tza`ar ba`alei chayim.” In this, he follows the line set down by Isserles and Isserlein, notes 17-18, above, as do contemporary halakhists: R. Yechiel Ya`akov Weinberg (20th-century Germany and Switzerland), Resp. Seridei Esh, 3:7; R. Ya`akov Breish (20th-century Switzerland), Resp. Chelkat Ya`akov 1:30; R. Eliezer Yehudah Waldenberg (20th-century Israel), Resp. Tzitz Eliezer 14:68. The only dispute among these authorities is whether the higher standard, the demand to avoid excessive cruelty (akzariut) to the animal, applies in these cases. The text indicates that we believe it does and that (in addition) the standard can be met.
  23. Perhaps the best summary of the halakhah on this point is found in two chapters of the Shulchan Arukh (Orach Chayim 618 and Yoreh De`ah 336), which declare that we administer food or medicine on the advice of a physician even when to do so would otherwise transgress against the prohibition of labor on Yom Kippur or Shabbat. On the relationship of scientific evidence and religious thinking in a Reform context see our responsum no. 5759.10, “Compulsory Immunization,” http://data.ccarnet.org/cgi-bin/respdisp.pl?file=10&year=5759 .
  24. http://www.nsta.org/about/positions/animals.aspx (accessed November 27, 2009).

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5770.6

CCAR RESPONSA

5770.6

A Request to Omit the Funeral Service

She’elah
I have a congregant who has asked that there be no funeral or memorial service upon his death. His brother feels, quite rightly in my view, that this would be hurting and insulting to many people who will be deeply aggrieved by the death and thus deprived of an opportunity to mourn, even if he does not wish to be honored. If he cannot be convinced, can we disregard the request in order to address the feelings of mourners? (Rabbi Richard Block, Cleveland, OH)

Teshuvah

People often say that “funerals are for the living, not for the dead.”[1] The statement conveys the idea that the rituals that accompany death and burial are intended primarily to aid us, the mourners and survivors, to process our grief, rather than to benefit the deceased, who can derive no “benefit” from these rites in any event.[2] Were we to apply the theory behind this statement to our she’elah, our answer would be clear: the deceased has no right and no power to deny to his mourners the benefit (whether we understand that word in theological or therapeutic terms) that they would gain from a funeral service. But we are rabbis. We view questions like this through the lens of Jewish teaching and tradition. And when we consider this issue in a specifically Jewish context, the answer is not so clear at all. For one thing, our tradition teaches us that “it is a mitzvah to fulfill the wishes of the deceased,”[3] and while the original context of that saying deals with financial matters,[4] it does suggest to us a general moral obligation to keep faith with those who can no longer act on their own behalf. Moreover, we find that the traditional rules governing Jewish funeral rituals require that we carefully balance the legitimate wishes of both parties, the dead as well as the living.

“The Honor of the Living” and “The Honor of the Dead”. The Talmud[5] addresses this question when it asks: “does the eulogy serve the honor of the living (yekara dechayei) or the honor of the dead (yekara deshakhvei)?” And as it frequently does, the Talmud follows this question with another question: lema’i nafka minah, “what practical difference does it make” whether the eulogy is for the dead or for the living? It suggests an answer:[6] suppose an individual leaves instructions that no eulogy be delivered upon his death. If we say that the eulogy serves “the honor of the dead,” that its primary goal is to raise the estimation of the deceased in the eyes of the mourners, then he is entitled to forego the honor due to him. On the other hand, should we say that the eulogy comes to serve “the honor of the living,” that its purpose is to help the survivors mourn their loss or even to buttress their own reputation in the eyes of the community, then the deceased has no right to deny that honor, which is their due. The Talmud debates the question, citing various Biblical and Rabbinic texts as evidence one way or the other, before concluding that the eulogy comes “for the honor of the dead.” The halakhic authorities learn from this that we are to heed the instructions of one who says “do not recite a eulogy for me.”[7] At the same time, those authorities rule that we do not heed the instructions of one who says “do not bury me when I die,” for burial of the dead is a religious obligation upon the mourners, an obligation from which the deceased cannot release them.[8]

This distinction between rituals that serve the honor of the dead and those that serve the honor of their mourners is a reasonable one, particularly in that it helps us in drawing that sensitive balance between the legitimate demands of both parties. On the basis of this distinction, this Committee has suggested that a parent is not empowered to forbid his or her child from reciting Kaddish upon the parent’s death. Our reasoning was as follows:[9]

(W)e recite Kaddish because it is the primary liturgical expression of traditional Jewish mourning. For us, it evokes the unbroken link of memory that binds every Jewish generation to its past. Its recitation is the way we declare our faith, even at the darkest moments of loss, in the eternity of Israel’s covenant with God, in the triumph of hope and “in the coming of the Divine kingdom.” … As such, this ritual indisputably serves “the honor of the living,” and the dead, according to the Talmudic principle, are not entitled to deny us the “honor” – we would prefer to say “responsibility” – of mourning as Jews. Thus, we recite Kaddish whether or not our loved ones request us to do so, or even if they forbid us from doing so after they are gone.

At the same time, the majority of the members of this Committee believe that the category of rituals performed for the sake of yekara deshakhvei, the honor of the dead, includes the funeral ceremony proper. That is to say, if our tradition empowers the deceased to refuse a eulogy, which is certainly the emotional climax of the funeral ceremony, it also affords him or her the right to ask that we not pronounce the rest of the funeral liturgy. The line that separates the rituals performed for “the honor of the dead” and “the honor of the living” should be burial itself. Just as the burial Kaddish is traditionally recited once the coffin has been covered with earth, so all the rituals of mourning that take place after burial – shiv`ah, sheloshim, yahrzeit, etc. – are to be considered as serving the needs of the living. The dying person cannot deny the mourners the opportunity to engage in those observances upon his or her death, even though he or she is entitled to instruct us to dispense with the funeral ceremonies that precede burial – i.e., the funeral liturgy and the eulogy.

We acknowledge that the line we have drawn is but a rule of thumb. It is not obvious that all rituals performed before burial are for “the honor of the dead” while those performed after burial pertain to “the honor of the living.” For example, in the responsum we have cited, our position contradicts that of some Orthodox authorities, who believe that the Kaddish itself is recited “for the honor of the dead” and that one may therefore instruct the mourners not to recite Kaddish on one’s behalf.[10] We note as well that “(s)ome authorities take the view that all the rituals of avelut, including shiv`ah, sheloshim, etc., are ‘for the honor of the dead’ and that the dead may exempt the mourners from the obligation to observe these practices” and that “(o)thers disagree.”[11] We learn from these disagreements that, while these traditional categories are appropriate ways to classify and to define our funeral and mourning rituals, the determination that any specific ritual is “for the honor of the dead” or “for the honor of the living” is dependent upon our perspective and is therefore likely to change over time.

This suggests that we are free to reevaluate the specific decisions of the past, the determinations of our predecessors that particular rituals fulfill one purpose or the other. As one member of our Committee puts it:

At what point does the changing meaning of the ritual inform our sense of “honor” and “obligation”? At what point does it bring to the fore another compelling religious concern? With respect to the hesped [eulogy], I think there can be an important therapeutic function served that should not be overlooked. (Indeed, much concerning the mitzvot and minhagim surrounding death, burial, and mourning are solid psychology. These are good and healthy things to do for the survivors when handled with care and sensitivity.) I have delivered a good many hespedim whose underlying purpose was to provide mourners with a framework for working out unresolved conflicts and issues, and building bridges back to other mourners now that the deceased (who kept them apart) was out of the picture, and so on. What is more, since the hesped is delivered publicly, others have heard it and remind the mourners of the message they heard.

Many, perhaps most of us, share these sentiments. If so, if even the eulogy can be conceived as serving “the honor of the living,” it is quite arguable that our Jewish tradition, as we liberal Jews would understand it, actually denies to the deceased the power to forbid his or her mourners from holding a funeral service.

Still, we do hold that “it is a mitzvah to fulfill the wishes of the deceased.” We pay an emotional price when we knowingly violate those wishes, and most of the members of this Committee are reluctant to counsel that they be ignored in their entirety. We therefore endorse the rule of thumb sketched above: the deceased is empowered to govern (and to prohibit) the rituals normally conducted prior to burial, and he or she does not wield that power over the rituals that take place after burial. To put this differently: the funeral serves the goal of kevod hamet (the honor of the dead)[12], while at the conclusion of the funeral the emphasis shifts to nichum aveilim (comforting the mourners, i.e., “the honor of the living”). We think that if the rabbi teaches the structure of the Jewish funeral and mourning rites in this way, each party – the dying person and those who will mourn that person – are much more likely to understand both the limits of their prerogatives in the matter and the duty to consider the needs of the other.

Conclusion. It is unfortunate that this congregant and his family are embroiled in a disagreement that must be painful for both sides. Our hope is that the disagreement may be resolved to everyone’s satisfaction prior to his death. If that reconciliation does not occur, however, our recommendation is as follows:

  • The mourners should honor the congregant’s request that no funeral service (including a eulogy) be held upon his death.
  • The mourners are entitled to recite Kaddish at grave side as soon as the body is buried. They are also entitled to observe the rites of mourning such as shiv`ah and sheloshim that occur after the funeral. These would include the memorial service that takes place at the time of gravestone dedication (hakamat matzevah).

NOTES

  • A web search will reveal that the saying is ubiquitous, even if it is not attributable to an original author.
  • See Ps. 115:17: “The dead do not praise God, nor do those who go down to silence.”
  • Mitzvah lekayem divrei hamet; B. Ketubot 70a and B. Gitin 14b and elsewhere.
  • Specifically, the transfer of property by a person in contemplation of death.
  • B. Sanhedrin 46b-47a.
  • Actually, the Talmud suggests two answers; our text deals with the first answer, since it is relevant to our she’elah. The second answer addresses the issue of funeral expenses. If the eulogy is “for the honor of the dead,” then the heirs are required to pay the fee of the preacher, if needed. If the eulogy is “for the honor of the living,” however, then the survivors are entitled to forego that honor and to save the money.
  • Yad, Avel 12:1; Hilkhot HaRosh, Sanhedrin 6:2; Shulchan Arukh Yoreh De`ah 344:10; Siftei Kohen, Yoreh De`ah 344, no. 8; Arukh Hashulchan, Yoreh De`ah 344, par. 7.
  • offers for this ruling – “because burial of the dead is a mitzvah, derived from Deuteronomy 21:23″ – has long puzzled his commentators. The Talmud does not mention this justification when it discusses the question of whether to heed this instruction (B. Sanhedrin 46b). According to that passage, the reason we would not heed the instruction is because the failure to bury a corpse is seen as bi’yona, contemptible treatment of the body, and one is not authorized to subject even his own body to such a fate (see Siftei Kohen, Yoreh De`ah 348, no. 3, who cites this justification). Rambam, however, omits any mention of biz’yona (the Aramaic cognate of bizayon) from his ruling, and the commentators accordingly try to reconcile his statement with the Talmudic source that is supposed to determine the halakhah. This is not the place for an extended consideration of their efforts, but we would point to the comment of Lechem Mishneh to Yad loc. cit.: Rambam must regard the statement by Rabbi Yochanan in the name of Rabbi Shimeon bar Yochai earlier in B. Sanhedrin 46b to be the controlling passage concerning our issue. That statement declares the verse Deuteronomy 21:23 as an “indication” (remez) that burial of the dead is a Toraitic commandment. If one accepts that statement as authoritative, as Rambam obviously does here, then one can disregard the subsequent discussion about biz’yona to be irrelevant to the issue at hand. It is enough to say that, because burial is a mitzvah to which the survivors are obligated, the deceased is not empowered to relieve them of that duty.
  • Reform Responsa for the Twenty-First Century (New York: CCAR, 2010), no.5766.1, “When A Parent Instructs a Child Not to Say Kaddish,” vol. 2, pp. 183-192 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=1&year=5766 ).
  • CCAR Responsum 5766.1 (see preceding note) at note 9.
  • Ibid., note 14. For example, while the 15th-century German posek R. Ya`akov Weil (Responsa, no. 17, and see Shulchan Arukh Yoreh De`ah 344:10) rules that one is not empowered to release his mourners from the obligation to observe shiv`ah and sheloshim, the 18th-century German authority R. Ya`akov Reischer (Resp. Shevut Ya`akov 2:102) contradicts him, on the grounds that the rites of avelut are undertaken “for the honor of the dead.”
  • Kevod hamet is the Hebrew equivalent of the Aramaic yekara deshakhvei.

If needed, please consult Abbreviations used in CCAR Responsa.

RR21 no. 5759.3

CCAR RESPONSA COMMITTEE
5759.3
Who Is a Rabbi?

 

She’elah.

A new congregation has been formed in my city, founded by a woman who has attended the International Institute for Secular Humanistic Judaism (IISHJ), the rabbinical school of the Society for Humanistic Judaism. She serves as the congregation’s rabbi, even though she has yet to be ordained by that school. She has been licensed by the state to perform weddings, and also does conversions. Should we accept these conversions as valid, even though they were supervised by someone other than an ordained rabbi? In general, what is our position with respect to individuals who have received private ordination or who claim to possess ordination from seminaries, schools or yeshivot with which we are unfamiliar? Do we recognize them as rabbis? Do we accept them as colleagues in our communities?

Teshuvah.

  1. Conversions Supervised by a Layperson. Your first question has been addressed quite clearly by the Central Conference of American Rabbis (CCAR). We hold that, while “a rabbinical beit din is desirable for giyur,” conversion should at any rate take place in the presence of a rabbi and no fewer than two lay leaders of the community.[1] We base this position upon considerations of both a halakhic and a practical nature.

    Our tradition teaches that conversion must take place in the presence of a beit din, a court of Jewish law.[2] The Rabbis derive this requirement through a midrash,[3] the interpretation of biblical verses in which the Hebrew root sh-p-t (“judgment”) appears in connection with the word ger, or “proselyte.”[4] The precise make-up of this court is a matter of dispute in the literature; some contend that the Torah itself requires that a beit din consist of no fewer than three judges,[5] while others believe that one judge is sufficient and that the requirement of three judges in cases other than penal law is a rabbinic stringency.[6] Both views agree, however, that the judges must be knowledgeable of the law and qualified for their task. Although the codified halakhah declares that any three individuals, including those with no special legal training,[7] may constitute a beit din, it justifies this provision on the assumption that among a gathering of three persons “it is impossible that there should not be one who knows something of the law.”[8] It follows that the rule will change should this assumption prove inaccurate: “if there is not one among these three judges who has studied the law, they are disqualified from serving as a court.”[9]

    In particular, the beit din which oversees a conversion must be composed of knowledgeable Jews.[10] Conversion, we stress, is much more than the stated desire to become a Jew. Choosing Judaism is a complex and demanding intellectual and emotional procedure. It involves, first of all, the study of Torah and Jewish practice (hoda`at hamitzvot), a curriculum which is taught at least in part by the members of the court.[11] Our tradition also requires that we “examine” the prospective Jew-by-choice, to determine whether his or her decision to become a Jew is sincere, well thought out, and motivated for reasons we find acceptable.[12] The journey by which one enters into the Jewish people, the veritable creation of a brand new identity – indeed, “the proselyte is like a new-born child”[13] – should therefore be supervised by a specialist who possesses the Judaic education and counseling skills necessary for this important task. We would add, moreover, that issues of personal status are among the most sensitive that face our community. It is deeply in our interest that we as a people be able to agree, to the greatest extent possible, upon “who is a Jew”, arriving at a consensus as to the standards by which we determine the Jewish identity of those who claim to possess it. “Conversions” performed by those who are unqualified to do so endanger this vital but fragile consensus, for they are likely to create a class of Jews whose very Jewishness will be suspect in the eyes of many. It is for these reasons, to insure the quality and the validity of conversion procedures, that our Conference along with the rest of the organized Jewish community insists that the supervision of conversion be a rabbinic prerogative.

    In principle (l’khatchilah), therefore, conversion should not be supervised by a layperson. We deal here, however, with a situation of “after the fact” (b’di`avad), with conversion ceremonies that have already taken place, with individuals who perhaps have been accepted as Jews-by-choice in your community. And in such a case, the halakhic tradition permits us to acknowledge the conversions, for although it ought to take place in the presence of a knowledgeable beit din, a conversion ritual administered by three unlearned judges (hedyotot) is nonetheless valid.[14] Let us be clear: we are under no obligation to recognize the validity of any “conversion” merely because a ritual bearing that name was performed by a group of three persons claiming to be a beit din. We are entitled to withhold our recognition of the conversion, for example, when we have serious doubts as to the legitimacy of the “court” or the fitness of its members to serve as “judges.”[15] Yet such objections do not apply here. Although we have our religious differences with Humanistic Judaism,[16] we have no reason to doubt the Jewishness or the Judaic sincerity of those who practice it. Similarly, we have every reason to believe that the individuals who have converted with this person demonstrate a genuine desire to live a Jewish life as it is understood by their community. They have made a carefully considered and public decision to take their place in the covenant of Israel, joining their fate to that of the Jewish people. For our part, we do not want to erect barriers to their entry. On the contrary: as Reform Jews, whose movement has distinguished itself by its encouragement of those who wish to choose Judaism, we ought to welcome them actively into our midst.

    Thus, our advice is two-fold. We urge you to advocate in your community that conversions to Judaism be supervised and guided solely by ordained rabbis. Such a standard reflects honor to the Torah and the seriousness with which we take the conversion procedure. It will also forestall difficulties by helping to ensure that the validity of conversions is accepted by most of the Jewish population. Yet to reject the individuals already converted by this person would serve no purpose save to embarrass them, sowing the seeds of bitterness and divisiveness within the community. Out of concern for Jewish unity and communal peace, and in recognition of their evident sincerity, you should rather accept them as full-fledged members of the Jewish people.

  1. Rabbis with “Suspect Ordination.” How we are to evaluate the rabbinical credentials of those who have received private ordination? What of those who have graduated from rabbinical schools with which we are unfamiliar or which we regard as inferior in quality? Do we accept these individuals as our colleagues, as rabbis in our communities?

    We might begin by considering the nature of the ordination by which we bestow the title “rabbi.” As we know that institution today, “ordination” is but the symbolic representation of the ancient s’mikhah described in the Talmudic sources.[17] Ancient ordination, according to halakhic theory, formed a new link in the chain of s’mikhah from teacher to student that stretched back all the way to Moses. The musmakh, or ordained judge, was therefore the legal successor to the seventy elders who stood with Moses on Sinai, and he was entitled to exercise the full range of legislative, judicial, and executive power pertaining to that exalted station. Among these was the power to enforce his decisions upon litigants even against their will, that is, if they had not agreed in advance to accept him as their judge. The musmakhim who constituted the High Court (beit din hagadol) could issue ordinances (takanot) that were binding upon all Jews everywhere. This s’mikhah was never practiced outside of the land of Israel; the Babylonian amoraim (sages of the Talmudic period) did not possess it, unless they received s’mikhah in the land of Israel. At best, the Babylonian “rabbis” (for without s’mikhah they did not take that title but were rather called rav) could regard themselves as “agents” of the rabbis of Eretz Yisrael, who commissioned them to exercise legal authority (sh’luchotayhu avdinan, “we perform their agency”)[18] within carefully circumscribed boundaries. Today’s rabbis, too, function as the agents of the rabbis of old. Although we do not wield the full legal power which they enjoyed–“today, we are all lay judges (hedyotot); we do not exercise the Toraitic power of jurisdiction”[19] – tradition suggests that they have empowered us to act in their name on matters that occur frequently in the legal life of our community or that are important enough to demand a response from contemporary authorities.[20] The “s’mikhah” that we practice today does not confer this ancient grant of jurisdiction upon the recipient. It is merely an attestation by a teacher that the recipient, his student, “has attained the requisite knowledge to rule on matters of Jewish law (higi`a l’hora’ah) and does so with the permission (r’shut) of the rabbi who has ordained him.”[21] Thus, our ordination does not endow its recipient with the authority to issue rulings that our people must accept. It is merely an expression of a teacher’s opinion that the student is capable of serving as a rabbi for a community which wishes to engage him or her. And nowhere do the sources tell us that a person must be ordained in order to perform rabbinical tasks. Rather, all rabbinical power today flows from the willingness of a community to abide by the rabbi’s rulings.[22]

    If this is the case, then no seminary, yeshivah or other institution owns a monopoly over the power to ordain. Any rabbi today is entitled to ordain any student who in the rabbi’s opinion has attained that level of knowledge which qualifies him or her to function as a rabbi. And the community, which has the final say as to who shall perform that function in its midst, is under no obligation to engage the services of an ordained person as its rabbi. From all this, one could argue that there is no substantive, objective content to the title “rabbi.” A “rabbi” is rather anyone who claims to possess some sort of ordination from a teacher. It would follow that we must recognize all such “rabbis” as legitimate possessors of that title.

    Yet though this is true according to the theory of Jewish law, our practice – that is, the way in which we live our law – has moved in the opposite direction. We emphatically do not believe that any and every person who is called “rabbi” or who serves some congregation in that capacity necessarily deserves the title. To us, rather, a “rabbi” is someone who is qualified for that distinction. It is therefore the widespread minhag among our communities, liberal and otherwise, to require that our rabbis receive the “customary ordination” before we engage their services.[23] Like our medieval ancestors, we utilize ordination as a criterion to measure one’s qualifications for the rabbinate, to determine that one meets and hopefully exceeds the minimum requirements of knowledge and expertise that we would set for our rabbinical leaders. If ordination is to serve as such a standard, it must surely be something more than an expression of some rabbi’s opinion or a signature on a piece of paper. Ordination must rather attest that its recipient has successfully completed an extended and rigorous program of Torah study and professional training which prepares one to exercise the rabbinical function in our communities.

    How do we define this program? Every Jewish community since the Middle Ages has developed its own answer to that question. In our community, that is, in the Reform Jewish community of North America, it is customary to require that those who wish to serve as rabbis graduate from rabbinical schools, seminaries and yeshivot whose curricula in our estimation clearly reach the necessary and desirable standards of educational excellence. We use the phrase “in our estimation” advisedly. We know that it is difficult to define “standards of educational excellence” to the satisfaction of all. Indeed, our rabbinical curricula have always been the subject of much debate among practitioners and educators. We acknowledge that our seminaries are not perfect, that a seminary ordination is no ironclad guarantee that its bearer will be a brilliant scholar and an inspiring religious leader. We believe, however, that as a general rule, the education provided by these schools, with the scholarly resources at their command, is a better preparation for the rabbinate than that afforded by lowly-regarded institutions or by individual rabbis who bestow “private ordination.”

    We also assert the right and the duty to act upon this belief. Every profession is entitled to define its own carefully considered educational standards. Those standards will inevitably be the subject of controversy, but at the end of the day it is the responsibility of the members of the profession to decide upon them and to enforce them. To deny us the right to set the standards we would demand for rabbinical education merely because they are controversial is to conclude that there are no standards, that there is no substance to the word “rabbi,” and that a rabbi is legitimately and properly anyone who chooses to assume that title. We do not believe this. The people whom we serve do not believe this. To draw such a conclusion would be absurd, and to act upon it would have destructive consequences for both the rabbinate and Jewish life. The best path, the one we must surely take, is to insist that our rabbis meet educational standards that, in our eyes, do honor to the title they carry.

    As a way of distinguishing between those who meet these standards and those who do not, the various rabbinical associations have developed sets of criteria to determine an individual’s fitness to join the rabbinical fellowship. The CCAR’s Admissions Guidelines[24] serve as a good example. The Guidelines specify that all applicants for membership to our Conference must have earned the degree of Bachelor of Arts (or its equivalent) from a recognized institution of higher learning, and the Master’s degree in Jewish Studies (or its equivalent). Rabbinic graduates of Hebrew Union College-Jewish Institute of Religion and of the Leo Baeck College of London are eligible for CCAR membership without interview or examination, provided that they apply within four years after ordination. Rabbinic graduates of other “approved seminaries” may be admitted to the CCAR following a process of interview or examination (which may include academic examination). Graduates of seminaries and yeshivot not on the “approved” list can be admitted following an investigation of the quality of those schools and of their courses of study. This is a crucial point: we do not claim that only the graduates of “approved seminaries” are worthy of admission to the Conference. Others may join as well, provided that they can prove that their rabbinical education meets standards of excellence similar to those of the recognized schools. On the other hand, a private ordination will not be accepted, for the ordination of students by individual rabbis whose programs of study are not supervised by any responsible authority endangers the maintenance of any and all standards of educational excellence.[25] It should go without saying–but, in the interests of clarity we shall say it nonetheless–that students or graduates of “rabbinical” schools affiliated with the various messianic Jewish movements are apostates; they are not rabbis, and our community must not grant them that distinction.

    The rabbis of your community can certainly develop some admissions criteria of their own, patterned after those of the CCAR and the other rabbinical associations. These associations will certainly assist you as you seek information concerning the programs of study at rabbinical schools with which you are not familiar.

To summarize: not everyone who may be called “rabbi” is necessarily deserving of that distinction. Your community is under no obligation to recognize the rabbinical credentials of those individuals who have received “ordination” privately or from lowly-regarded institutions. The rabbis in your city are similarly under no obligation to accept these persons as colleagues and as members of your local rabbinical association. You should, of course, act towards them with grace, cordiality and tact, with all due concern for communal unity, in the spirit of a tradition that calls upon us to follow “the paths of peace.” Yet the ultimate message is clear: if we as rabbis truly care about the quality and the reputation of our calling, it is our duty to advocate that membership in the rabbinate be restricted to those who clearly meet the proper educational standards.

NOTES

  1. Rabbi’s Manual (New York: CCAR, 1988), 232.
  2. B. Y’vamot 46b and Kiddushin 62b; Yad, Isurey Bi’ah 13:6-7 and 14:6; SA YD 268:3.
  3. The text says “verses” because the Talmud does not specify which verse is the subject of the midrash. According to Rashi (Y’vamot 46b, s.v. mishpat k’tiv beh), the verse in question is Numbers 15:16, and “judgment (mishpat) does not occur with less than three judges”; on the other hand, in Kiddushin 62b, he points to Leviticus 24:22. Tosafot (Y’vamot 46b, s.v. mishpat) offers Deuteronomy 1:16, following a baraita on Y’vamot 47a.
  4. The identification with the biblical term ger with the proselyte is found in the rabbinic literature. In the Bible itself, the ger is not a “convert to Judaism” but rather a “resident alien,” a non-Israelite permitted to dwell in the land and who, though remaining a non-citizen, enjoys certain privileges. For sources and discussion, see our responsum 5756.13.
  5. M. Sanhedrin 1:1; Rava, B. Sanhedrin 3a. The number three is derived by way of midrash on three appearances of the word elohim (“judges”) in Exodus 22; see the baraita near the top of B. Sanhedrin 3b. Rava holds that this requirement applies to all matters of monetary law (mamonot) as well as to matters involving fines (k’nasot).
  6. Rav Acha b. deRav Ika, B. Sanhedrin 3a.
  7. The term used here is hedyotot, which can be translated either as “persons ignorant of the law” or “persons who are not ordained judges (musmakhim).” In this case, the Talmudic text (B. Sanhedrin 3a) makes it clear that we are speaking of the former.
  8. SA HM 3:1. This reasoning is used in the Talmud (B. Sanhedrin 3a) to support the position of Rav Acha: that is, although the Torah permits one person to judge a case, the Rabbis impose the requirement of three so that at least one of them will be gamir, i.e., one who is familiar with the law at least on a basic level (see Rashi, Sanhedrin 3a, s.v. d’gamir: “one who has heard some of the laws from sages and judges”).
  9. Tosafot, Sanhedrin 3a, s.v. ‘i efshar; Hilkhot HaRosh, Sanhedrin 1:1; SA HM 3:1.
  10. The noted nineteenth-century Galician authority and scholar R. Zvi Hirsch Chajes writes in his chidushim to Shabbat 46b that a conversion beit din must be composed of scholars (talmidey chakhamim). The opposite view, however, is taken in Resp. Binyamin Ze’ev (16th-century Greece), 1:72.
  11. B. Y’vamot 47b (according to Rabbi Yochanan’s emendation of the baraita at the top of the page): “three scholars (talmidey chakhamim) stand by him (at the moment of ritual immersion), informing him of some of the lighter and weightier commandments.”
  12. On the requirement of “examination,” see Yad, Isurey Bi’ah 13:14 and SA YD 268:12. The question of motives is discussed in B. Y’vamot 24b. One who wishes to convert for the “wrong” reasons (marriage; hope for financial gain or political power, etc.) Should not, in theory, be accepted, although once accepted is a valid proselyte. And in all cases, the determination of “proper” and “improper” motivation or readiness for conversion is a matter left to the judgment of the beit din (Tosafot, Y’vamot 24b, s.v. lo; Beit Yosef YD 268, end; Siftey Kohen, YD 268, no. 23. That a decision to convert must be “well-thought-out” implies that the Jew-by-choice be made aware of the obligations which Judaism imposes and of the difficulties and even dangers that have historically been the lot of the people of Israel; see B. Y’vamot 47a-b.
  13. B. Y’vamot 22a and parallels.
  14. Yad, Isurey Bi’ah 13:14-17; SA YD 268:12. Maimonides does require that in the case of a ger who converts before a panel of hedyotot who do not properly examine his motivations, we “watch him until his sincerity is proven.” This does not mean that the ger is not a Jew (see Magid Mishneh and Kesef Mishneh to 13:17), but rather that we may not allow him to marry a Jew until we are certain of his proper intent.
  15. For example, if one of the members of the panel were a non-Jew or an apostate.
  16. See Teshuvot for the Nineties (TFN), no. 5751.4, pp. 9-16, https://www.ccarnet.org/ccar-responsa/tfn-no-5751-4-9-15/
  17. For sources and discussion, see our responsum “Private Ordination,” TFN, no. 5753.4, pp. 133-139, https://www.ccarnet.org/ccar-responsa/tfn-no-5753-4-133-140/. Yad, Sanhedrin ch. 4, along with Tur, SA, and Arukh Hashulchan, HM 1, offer useful summaries of the rules and definitions of rabbinic status in ancient times and in our own day.
  18. See B. Gitin 88b, on the coercion of divorce from recalcitrant husbands.
  19. Tur, HM 1.
  20. Today’s judges, who do not possess s’mikhah, are empowered to adjudicate matters which are “frequent” (i.e., normal occurrence in social life, such as torts, contracts, inheritance, etc.) and which involve monetary loss; SA, HM 1:1. Conversion itself is an interesting case. If the Torah requires three judges to preside over giyur, it might be thought that these judges (shoftim) should be ordained according to the biblical standard. This would mean that conversion, in the absence of such judges, could not take place today. Yet conversions manifestly do take place. Therefore, halakhists have developed the theory that the ordained judges of old have also commissioned us to act as their agents in matters of conversion, on the grounds that “we should not bar the door to proselytes”; Tosafot, Y’vamot 46b-47a, s.v. mishpat.
  21. Isserles, YD 242:14, based upon a responsum by R. Yitzchak b. Sheshet (14th-century Spain/North Africa), Resp. Rivash, no. 271.
  22. We should note that this “willingness” is not an arbitrary matter. In the traditional understanding, a “good” Jewish community certainly wants to live its life in accordance with Torah. While anyone, in theory, can study Torah and apply its provisions to his or her own life, the complexity of the halakhah has led to the long-established minhag to turn to sages and scholars for the reliable interpretation of Jewish law. Rabbis, as these sages and scholars, are therefore indispensable to traditional Jewish life. The point we make here is that no individual “rabbi” can through the power of ordination force any individual or community to abide by his particular interpretations and rulings. Rather, by engaging or recognizing the individual as “their” rabbi, Jews traditionally stipulate their willingness to accept his rulings. Power, in other words, flows from the community to the rabbi and not, as it did in the days of ancient s’mikhah, from the ordaining institution to the rabbi.
  23. See Arukh Hashulchan HM 1:14: no one should preside over weddings, divorces, or chalitzah rituals unless he has received “the customary ordination.”
  24. On file with the CCAR.
  25. See as well TFN, no. 5753.4 (note 17, above), at 137-138: private ordination, which offers a shortcut to s’mikhah which bypasses the rigors and requirements of a seminary curriculum, is surely destructive of our efforts to support the rabbinical schools that meet the standards of educational excellence upon which we insist.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5767.1

CCAR RESPONSA

5767.1

Berakhah and Gender

She’elah

A member of the congregation would like an aliyah to the Torah but objects to the use of masculine God language in the traditional berakhah (blessing or benediction). She wishes to use an alternative berakhah which is gender feminine (something along the lines of “Berukhah At Yah.”). The custom of our congregation has been to use the traditional Hebrew for the Torah blessings.  Is the Torah blessing a private blessing or a blessing made on behalf of those gathered?  If it is private, it would seem meritorious to permit the blessing as a way of encouraging the mitzvah of reading Torah and as a way of honoring the various conceptions of God held by members of the community.  Should a member called to the Torah be permitted to use the blessing of his or her choice? (Rabbi David Thomas, Sudbury, MA)

Teshuvah

1. Introduction. At first glance, the answer to this she’elah might seem clear and obvious. The reading of the Torah is indeed a public act, the fulfillment of a communal obligation.[1] Thus, it is formally called keri’at hatorah berabim, “the public reading of the Torah” and traditionally must take place in the presence of a “public,” that is, a minyan.[2] The person who receives the aliyah (the oleh/ah) enables the community to fulfill its obligation to hear the Torah reading. Thus, when he or she recites the customary berakhot the congregation must respond “amen,” since the Torah reading is a communal, rather than an individual mitzvah.[3] On this basis, the individual is not entitled to depart from the communal minhag (custom). Acting as the representative for the congregation when called to the Torah, he or she must recite the berakhot in accordance with the congregation’s pattern of observance.

In another sense, though, the answer is not obvious at all. A congregation is empowered to alter its minhag, and implicit in this she’elah is the request that the congregation formally permit this individual to recite alternative berakhhot when she is called to the Torah. Should the congregation grant her that permission? There are good arguments on both sides of the issue.

On the one hand, the congregant might cite the long record of liturgical innovation in Reform Judaism. We Reform Jews have always been ready to amend our inherited liturgical forms in favor of new structures of prayer that reflect our contemporary religious values.[4] One of these values is our commitment to gender equality, our insistence that women be included with men as equal partners in all aspects of communal life.[5] This congregant objects to the male-gender form of the traditional berakhah, perhaps because its presentation of God as a commanding Lord and King “has reinforced forms of patriarchal power and male privilege in the world.”[6] We do not wish our liturgy to convey such a message, and we would therefore find this to be a strong Reform Jewish argument in her behalf.

On the other hand, that very same history indicates that, alongside our record of innovation, we Reform Jews have also maintained much of traditional Jewish liturgical practice. For example, it is the minhag of this congregation, and of every Reform congregation with which we are familiar, to begin and to conclude each aliyah (section of the Torah reading) with the customary berakhot. In doing so, the congregation has accepted upon itself the discipline of a particular liturgical form. That is to say, a berakhah is not simply a “blessing,” a lyrical utterance of praise. It is a formal ritual act, and like all such acts it is defined by the halakhah, traditional Jewish law. It is the halakhah that tells us what a berakhah is, how it should be formulated, and the circumstances under which it may be recited. These details cannot be dismissed as mere “Orthodox” minutiae. Given that we Reform Jews have adopted the traditional Jewish practice to recite berakhot at appropriate ritual moments, the rules that govern that practice are not “Orthodox” rules but Jewish rules; they are our rules as well.[7] This does not mean, of course, that we are constrained to interpret the halakhah as do other Jews.[8] It does mean, however, that the form of a berakhah is acceptable only when it meets the specifications that the halakhah – as we understand it – demands of that ritual act.

In addressing this she’elah, therefore, we want to focus upon two lines of inquiry. First, we will ask whether the halakhah, the rules and principles that define the structure of Jewish liturgy, can accommodate the sort of innovation that this congregant seeks. And second, we want to consider the question in light of our movement’s history of liturgical innovation and, as well, its continuing attachment to Jewish tradition.

2. Halakhic Considerations. Our halakhic discussion begins with this Talmudic passage:[9]

Rav says: A benediction that does not include the mention God’s name (hazkarat hashem) is not a valid benediction. R. Yochanan says: A benediction that does not include the mention of God’s sovereignty over the world (malkhut) is not a valid benediction. Abaye says: Rav’s position is the correct one, for it is supported by a baraita:[10] “‘I have neither transgressed nor neglected any of Your commandments’ (Deut. 26:13). ‘I have neither transgressed’ means that I have not failed to recite the proper berakhah,[11] while ‘nor neglected’ means that I have not forgotten to include the mention of God’s name in the benediction.” And this baraita says nothing about “sovereignty.” How would R. Yochanan respond? He would read the baraita thus: “nor neglected” means “I have not forgotten to mention God’s name and God’s sovereignty in the benediction.”

The authorities hold that the law follows R. Yochanan’s position:[12] a valid benediction must include shem umalkhut, the mention of God’s name and of God’s sovereignty over the world.[13] According to universal custom, “God’s name” is the Tetragrammaton, the ineffable four-letter yod-heh-vav-heh,[14] which in its pronunciation Adonai signifies “Lord” or “Master.” “Sovereignty over the world” refers to the words melekh ha`olam (literally “king of the universe).”[15] There are some exceptions to this rule, the most obvious of which is the tefilah, where none of the berakhot mention God’s sovereignty (malkhut).[16] Halakhists account for these exceptions in various ways. For example, the berakhot that conclude each paragraph of the tefilah (chatimot) do not require malkhut because they are part of a series (seder) of benedictions, and each benediction in such a series “relies” upon the mention of God’s sovereignty in the first berakhah.[17] As for the first benediction of the tefilah (the Avot), which also omits the word melekh, the phrases “the God of Abraham” (elohei Avraham) or “the great, mighty, and awesome God” (ha’el hagdol hagibor vehanora) in that benediction serve as substitute expressions of God’s sovereign power in the world.[18]

Given that there are exceptions to the rule of shem umalkhut, we should ask if other deviations from the traditional version might meet halakhic standards? The answer, apparently, is “yes.” For one thing, the halakhah accepts as valid a blessing recited in translation.[19] From this fact, the estimable 20th-century authority R. Yisrael Meir Kagan (author of the Mishnah Berurah) learns[20] that a benediction recited in Hebrew can be valid even if it does not include the Tetragrammaton, so long as it substitutes in its place any of God’s proper names – i.e., the azkarot, the names of God that, when written in Hebrew, must never be erased.[21] His point is that if a translation of God’s name may substitute for the Tetragrammaton, then surely any of these Hebrew azkarot must be just as acceptable.[22]

Jewish law, therefore, suggests two ways of meeting this congregant’s request. She could, first of all, say the benediction in gender-neutral English: “Praised are You, Eternal our God, Sovereign of the Universe…”.[23] Should she prefer to recite it in Hebrew, she might replace the name Adonai (to which she objects because it connotes “Lord”) with one of the other azkarot, such as Elohim (“God”). “Yah,”a shortened form of yod-heh-vav-heh, is not listed among those azkarot and would not, therefore, be halakhicly acceptable as a name of God in a berakhah. For “sovereignty” she might replace melekh with the expression elohei Avraham veSarah, which as we have seen functions as the symbolic equivalent of malkhut in the first benediction of the tefilah.[24] The rest of the berakhah formula could be feminized (Berukhah at, asher bachrah banu, etc.). This language, of course, would not agree grammatically with the azkarot, which are all masculine in form (for that matter, so is the name “Yah”).[25] Yet if we conceive of God as being above and beyond all considerations of gender, we can with integrity decide that God might accurately be addressed by way of masculine or feminine nouns, verbs, and adjectives.[26]

3. Tradition, the Hebrew Liturgy, and Reform Judaism. We have discovered that a benediction structured along the lines suggested in our she’elah might meet the minimal[27] requirements for a berakhah under Jewish law. Yet we should not confuse “minimal” with optimal; the fact that a particular act might be valid under the rules does not, in and of itself, mean that it is a good thing and that we should adopt it. In this particular case, in fact, we believe the opposite conclusion is warranted. The synagogue should insist upon the traditional version of the berakhah in its congregational worship services.

We base this statement, first and foremost, upon our reverence for Jewish tradition. It is true, as we have said, that Reform Judaism is accepting of liturgical innovation, particularly innovation that reflects our commitment to gender equality. Yet along with this we have noted that “we Reform Jews have also maintained much of traditional Jewish liturgical practice.” This includes, in particular, the accepted minhag among our congregations to recite the traditional berakhah formula during the Torah ritual and, indeed, throughout their public worship. Let us understand clearly what that minhag represents. When we maintain traditional forms of observance, we do so intentionally, not out of simple habit or inertia but as a conscious act of Jewish identification. By adopting such observances, we make the explicit statement that our Reform Jewish religious life is an identifiably Jewish one. With all our embrace of ritual creativity, our practice is not exclusively our own invention, a collection of behaviors meaningful onlywithin the context of the North American Reform synagogue. Our forms of practice are “Jewish” to the extent that they affirm our roots in the Jewish past and our ongoing connection with the religious life of Jews throughout the world. In defining Reform Judaism to ourselves and to others, therefore, it is not sufficient to point to our love of “innovation.” We must also emphasize the opposite side of the coin: our recognition that “Judaism is the historical religious experience of the Jewish people”[28] and our desire to give voice to our faith through ritual forms that evoke our sense of that experience.

The history of our religious practice, including our liturgical practice, is therefore in large part the record of our efforts to draw a proper balance between these goals, to reach a satisfying accommodation between our dedication to Jewish tradition and to our liberal ethical and cultural values. In our prayerbooks, we now compose both the translations and the stand-alone sections in gender-neutral English.[29] We have also introduced changes into some of the Hebrew texts, such as the names of the Matriarchs in the first benediction of the tefilah.[30] Yet we have not seen fit to redraft the entirety of our Hebrew liturgy to remove any and all references to God in the masculine gender. Thus, even in that introductory berakhah of the tefilah we continue to address God in the second person masculine singular (Barukh atah) and to describe God in the third person masculine singular (hagadol hagibor vehanora). In the Shema Yisrael, we continue to declare God to be “One” in the masculine form of that word – echad – rather than in the feminine achat. To repeat: our preservation of the traditional liturgical forms should not be interpreted as accidental or as evidence of negligence on our part. Rather, these texts as they are, taken from the Bible, the Rabbinic literature, and the sidur, are the very substance of Jewish prayer. Through centuries of use they have come to play a central and indispensable role in our religious lives. We have therefore preferred to leave largely intact the language of the prophets, the poets, the psalmists, and the sages who wrote them.

We do not believe that our decision to retain much of the traditional Hebrew liturgy, even when it is expressed in masculine language, compromises our commitment to gender equality. We say this for two reasons. The first has to do with the nature of Hebrew grammar: the so-called “masculine” formulation is in fact an inclusive one, since Hebrew uses the masculine to describe persons or things of unspecified gender or groups of mixed gender. The second has to do with our own liberal Jewish outlook, which determines how we think about and talk about the words we pray. We hold that God is above and beyond all considerations of gender, and no traditional liturgical text or formula, no matter how “masculine” its literal formulation, should call that commitment into question.

And therein lies our difficulty with this congregant’s request. If the concern is that our liturgy be gender-neutral and inclusive, then the formula Berukhah at fails, since it is unequivocally feminine and cannot be construed as neutral. To allow its recitation would be to say, in effect, that there is only gender and no neutrality: God is either “male” or “female,” and we must choose between those two alternatives. This would necessarily imply that the traditional berakhah is a “masculine” and not a neutral one. It would send the unmistakable message that those who say Barukh atah Adonai – that is, the overwhelming majority of our people –  are promoting a masculine conception of God. We do not believe this. We believe that when we recite the traditional liturgy, we are identifying our own prayer with that of our people in ages past, who authored these words and bequeathed them to us. We do not believe that we are reinforcing “forms of patriarchal power and male privilege in the world.” Our Reform Jewish teaching, preaching, and record of liturgical creativity contradict that message; they establish beyond a doubt our movement’s devotion to the concept and practice of gender neutrality. We should avoid taking actions that suggest otherwise.

4. Conclusion. The form of berakhah that this congregant wishes to recite meets the minimum standards that Jewish law sets for a benediction, provided that the rules governing the mention of God’s name and of God’s sovereignty are properly observed. For this reason, she may certainly use it in private worship or as part of ritual observances in her home. The synagogue service, however, as a communal, public setting, is another matter. For the reasons we have outlined – our devotion to the linguistic tradition of traditional Jewish prayer and our commitment to gender neutrality in our liturgy – we would discourage the congregation from permitting the use of this alternative berakhah form in its public worship.[31]

NOTES

1.         The tradition ascribes the institution of the public Torah reading to enactments (takanot) of Moses and Ezra; see B. Bava Kama 82a and Yad, Tefilah 12:1.

2.         M. Megilah 4:3; Yad, Tefilah 12:3; Shulchan Arukh Orach Chayim 143:1.

3.         B. Sotah 39b; Yad, Tefilah 12:6; Shulchan Arukh Orach Chayim 143:5 and Mishnah Berurah ad loc., no. 17.

4.         For example, Reform prayerbooks have excised traditional liturgical passages that petition God for the rebuilding of the Temple, the re-institution of sacrificial worship, the resurrection of the dead, the advent of a personal Messiah, and the like. On the history and development of Reform Jewish liturgy, see Jakob J. Petuchowski, Prayerbook Reform in Europe: The Liturgy of European Liberal and Reform Judaism (New York: World Union for Progressive Judaism, 1968); Eric L. Friedland, “Were Our Mouths Filled With Song”: Studies in Liberal Jewish Liturgy (Cincinnati: HUC Press, 1997); and the two volumes of Gates of Understanding edited by Lawrence A. Hoffman (New York: CCAR, 1977, and New York: CCAR, 1984).

5.         Our prayerbooks, for example, now commonly use gender-neutral English, and we have also altered the traditional Hebrew text in various places to reflect this commitment. The most notable example of such a change is the insertion of the names of the Matriarchs (imahot) in the first benediction of the tefilah or amidah. For an argument that this innovation accords with traditional liturgical halakhah, see our responsum “Matriarchs in the Tefilah,” Responsa Committee no. 5763.6 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=6&year=5763 ).

6.         Marcia Falk, The Book of Blessings (New York: HarperCollins, 1996), xvii (explaining her view that the traditional Adonai Eloheinu, melekh ha`olam “is an example of dead metaphor”).

7.         For a more extended version of this argument, see our responsa “A Non-Traditional Sukkah,” Teshuvot for the Nineties, no. 5755.4, pp. 91-96 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=4&year=57550 ) and “A Defective ‘Holocaust’ Torah Scroll,” Responsa Committee no. 5760.3 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5760) .

8.         On the contrary: all Jewish communities interpret the halakhah from the standpoint of their own particular social and theological perspective. This is precisely what the Responsa Committee – and indeed the entire Reform halakhic process – has done throughout its history. When we interpret the traditional Jewish legal sources, we do so consciously and explicitly from the perspective of contemporary Reform Jews. Our point here is that all Jews must interpret the sources from their own perspective, for the activity of interpretation must begin from the standpoint of the particular community of interpretation. On this view Orthodoxy is but one of several possible vantage points from which to read and understand the sources. We therefore should not fall into the common misperception of identifying the Orthodox interpretation of the halakhah as the halakhah.

9.         B. Berakhot 40b.

10.       That is, a text dating from the period of the Tanaim, roughly the first two centuries of the Common Era. Rav, R. Yochanan, and Abaye are Amoraim, the name given to the rabbinic scholars during the period of the Talmud (ca. 200-500 C.E.). If a Tanaitic source can be cited in support of the viewpoint of an Amora, then that counts as a strong proof on behalf of that viewpoint.

11.       The benediction over the separation of tithes from one’s agricultural produce.

12.       On the grounds that the Talmud has successfully defended that position from the critique offered by Abaye. See as well Y. Berakhot 9:1 (12d), where Rav is quoted as requiring malkhut in the formula for the benediction. Tosafot (Berakhot 54a, s.v. haro’eh), in turn, cites this passage from the Yerushalmi in support of its ruling that “all these berakhot (i.e., the ones mentioned in M. Berakhot 9:1) must include the mention of God’s name and of God’s sovereignty.” See also Sefer Ha’eshkol, Hilkhot Birkhot Hashachar, 5a.

13.       The Geonic compilation Halakhot Gedolot (ed. Hildesheimer, v. 1, 82) explains that the Talmud’s defense of R. Yochanan’s position is an indication that it decides in accordance with his view. See also Alfasi to Berakhot 40b; Yad, Berakhot 1:5; Tosafot, Berakhot 40b, s.v. amar; Nachmanides, Torat Ha’adam, Inyan Harefu’ah, Chavel ed., p. 4; Shibolei Haleket, Seder Berakhot, ch. 165; Hilkhot Harosh, Berakhot 6:23; Sefer Kolbo, ch. 25; Shulchan Arukh Orach Chayim 214.

14.       “Universal,” at least, since Tanaitic times. See Tosefta Berakhot 6:20 (ed. Lieberman; 6:26 in the traditional printed editions) and Saul Lieberman, Tosefta Kifshutah ad loc.: some sects shied away from reciting the Tetragrammaton in the berakhah, and their practice was branded “heretical” by the Rabbis.

15.       On the early history and development of the berakhah as a liturgical form see Yosef Heinemann, Hatefilah betekufat hatanaim veha’amoraim (Jerusalem: Magnes, 1978), 52-66. At 61-62, he suggests that while Barukh atah Adonai is quite ancient (the formula is already present in the Qumran texts), melekh ha`olam comes later (hence the disagreement between the third-century Amoraim Rav and R. Yochanan in B. Berakhot 40b; see at n. 9, above). The decision to mention God’s sovereignty in the berakhah (and, for that matter, to recite malhuyot verses in the tefilah on Rosh Hashanah (M. Rosh Hashanah 4:5) may therefore have been an act of protest against the deification of the emperor in Roman cultic practice.

16.       Historians have their own explanations for this fact. Heinemann (see note 15), for example, notes that the tefilah is a creation of the Tanaim and therefore predates the Amoraic dispute over whether malkhut must be included in the berakhah.

17.       Yad, Berakhot 1:5. The technical term for these benedictions is berakhah hasemukhah lechavertah, literally “a benediction that relies/rests upon the one preceding it.” The benedictions recited over keri’at hatorah are good examples of this rule, as are the benedictions that precede and follow the recitation of Shema and the kiddush blessing. Each berakhah begins with the full formula, a phrase that mentions both God’s name and God’s sovereignty, and concludes with a shorter phrase that mentions God’s name but not God’s sovereignty. The Sefer Harokeach (ch. 363), a 13th-century Ashkenazic compilation, suggests a reason for this distinction: in the beginning blessings we follow the opinion of R. Yochanan (B. Berakhot 40b), who requires malkhut, and in the concluding benedictions we follow the opinion of Rav, who does not.

18.       Tosafot, Berakhot 40b, s.v. amar; Hilkhot Harosh, Berakhot 6:23; R. Yosef Karo, Beit Yosef, Orach Chayim 214.

19.       See B. Berakhot 40b, several lines above the passage quoted at note 9. Rav accepts as valid a blessing recited in Aramaic, even though it does not mention the Tetragrammaton, because it does refer to God as Rachamana, “the Merciful One.” The Talmud derives the rule that a berakhah may be recited in any language from M. Sotah 7:1. Rambam (Yad, Berakhot 1:6) codifies this as follows: “all the berakhot may be recited in any language… (provided that the translated berakhah) includes a proper name of God (azkarah) and the mention of God’s sovereignty and that it maintains the substance of the original berakhah.”

20.       Mishnah Berurah 214, no. 4.

21.       Rambam (Yad, Yesodei Hatorah 6:2) identifies these as: Adonai (written either as the Tetragrammaton or as it is pronounced – alef – dalet – nun – yod); el; elo’ah; elohim; elohai; shadai; and tzeva’ot. The provision that these names never be erased applies only when they are written in Hebrew. On this, see our responsum no. 5762.1, “Proper Disposal of Religious Texts” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=1&year=5762 ).

22.       Mishnah Berurah 214, in Sha`ar Hatziyun, no. 3. The argument is a classic kal vachomer, an a forteriori inference.

23.       “Eternal,” used here as a substitute for Adonai, appears in some English translations of Jewish prayer texts. It is a suggested rendering of the written form of the Tetragrammaton, which may be related to the Hebrew root heh-vav-heh, “to be.” The translation “the Lord,” by contrast, renders the meaning of the Tetragrammaton in its spoken form, Adonai.

24.       See above at note 5: it has long been our Reform practice to add the names of the Matriarchs to those of the Patriarchs in this berakhah. Alternatively, she could convert the expression to its feminine form: malkat ha`olam, “Sovereign of (literally, ‘Queen of’) the Universe.” The difficulty here, as one member of our Committee notes, is that in normal usage a queen is “sovereign” only in the absence of a legitimate king. Thus, the word malkah or “queen” does not express the concept of “sovereignty” in a sense as complete as that of melekh or “king.”

25.       See, for example, Exodus 15:2, Psalms 118:18 and 135:4, where the name Yah is used with masculine verbs and adjectives.

26.       A partial analogy to this is the fact the names Elohim and Eloheinu are plural in form, even though since Biblical times they have been read as singular nouns when referring to the God of Israel (see, most obviously, Genesis 1:1, where Elohim is paired with bara, a singular verb). Since we have long accepted that the God of Israel is One, such grammatical curiosities do not trouble us. The same might apply here, when we recognize gender as being irrelevant to our conception of God.

27.       We use the word “minimal” because the author of the Mishnah Berurah, whom we follow here, undoubtedly did not intend his ruling as a “permit”of such berakhot in practice. He is speaking to a situation of bedi`avad (“after the fact”), in which a person has already recited such a benediction. This is evident from the wording in Mishnah Berurah 214, no. 4: one who mentions an azkarah other than the Tetragrammaton has fulfilled his obligation (yatzah). His point is that should one recite this “deviant” benediction one need not repeat it in its “correct” form inasmuch as it meets the minimum liturgical requirements. It is not, however, in principle “permitted” to construct the berakhah in that manner. Were that the case, Kagan would have used a word that definitely signifies permission (such as mutar, “it is permitted”).

28.       See the CCAR’s Columbus Platform of 1937 http://www.ccarnet.org/Articles/index.cfm?id=40&pge_prg_id=3032&pge_id=1656,), section A. 1, “The Nature of Judaism.”

29.       When translating the traditional Hebrew, this is generally accomplished through the use of the gender-neutral second person. Thus, “Praised are You, O God” avoids the masculine language of Barukh atah Adonai. Our prayerbooks will frequently translate a Hebrew third-person usage (“He”) into the English second person (“You”). A good example is Hu Eloheinu ein od in the Aleinu, which often appears in our liturgy as “You are our God, there is none else.”

30.       See above, note 5.

31.       A postscript: given that, as we have noted, one may recite a benediction in gender-neutral English and meet the halakhic requirements for a valid berakhah, one member of our Committee suggests that the congregation permit an individual called to the Torah to say the benediction in English. The majority do not join in this recommendation, on the grounds that we wish to encourage Hebrew literacy among our congregants and the use of Hebrew in our worship services.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5767.2

CCAR RESPONSA COMMITTEE
5767.2
Adoption, Conversion, and “Patrilineal” Descent

 

She’elah.

Two lesbian women are expecting a baby conceived through sperm donation. One of these women is Jewish and affiliates with the Reform movement, but the other is not, and it is she who will be the birth mother. The sperm donor is not Jewish. The two women partners will be the child’s parents, and they plan to raise their child in a Jewish home. Will their baby have to undergo a formal conversion (i.e., be immersed in a mikveh) to confer Jewish status according to Reform movement principles? Will the Jewishness of the non-carrying parent-partner play a role in conferring Jewish status to the child, as it could in a situation of patrilineal descent where the parents are heterosexuals? (Rabbi Andrew Vogel, Brookline, MA)

 

Teshuvah.

We should state at the outset of our teshuvah that this couple’s sexual orientation is not germane to the issues at hand. Our sho’el’s questions would apply as well to the case of a heterosexual couple. In either case the child, as the offspring of two Gentile biological parents, would be a Gentile at birth and would subsequently be adopted by the mother’s Jewish partner. The critical factor here is that of adoption: how does a Gentile child acquire a Jewish identity when adopted by a Jewish parent or parents? Is a formal conversion (giyur) necessary?

  1. Adoption and “Patrilineal” Descent. Our sho’el asks whether this child might qualify as a Jew under the CCAR’s doctrine of “patrilineal”descent. That doctrine, more properly called “the doctrine concerning the status of offspring of mixed marriage,”[1] is set forth in a resolution enacted by the CCAR in 1983:[2]

The Central Conference of American Rabbis declares that the child of one Jewish parent is under the presumption of Jewish descent. This presumption of the Jewish status of the offspring of any mixed marriage is to be established through appropriate and timely public and formal acts of identification with the Jewish faith and people. The performance of these mitzvot serves to commit those who participate in them, both parents and child, to Jewish life.

Depending on circumstances, mitzvot leading toward a positive and exclusive Jewish identity will include entry into the covenant, acquisition of a Hebrew name, Torah study, Bar/Bat Mitzvah, and Kabbalat Torah (Confirmation). For those beyond childhood claiming Jewish identity, other public acts or declarations may be added or substituted after consultation with their rabbi.

Some might argue that this doctrine applies to our case because adoption creates a legitimate family relationship; one’s adoptive parents are in every respect one’s real parents.[3] This child, who acquires a Jewish parent by way of adoption, should therefore be treated in every way as though she or he were the biological offspring of that parent. This Committee, however, has understood the doctrine to apply exclusively to biological offspring.[4] That is because the 1983 resolution comes to adjust – but not to abolish – the traditional “biological” definition of Jewishness, i.e., descent from a Jewish mother.[5] The new definition, though it differs from the traditional one in some important respects, reaffirms the central importance of biological descent for the determination of Jewishness. Thus, we continue to recognize the biological offspring of two Jewish parents as a Jew, even in the absence of “appropriate and timely” acts of Jewish identification, and we continue to recognize the biological offspring of two Gentile parents as a Gentile who would require conversion in order to become a Jew. Similarly, the child of one Jewish parent enjoys a “presumption of Jewish descent” solely because he or she is the biological offspring of that parent, and upon the performance of those “appropriate and timely” acts he or she is considered to have been Jewish from birth.[6] The child, that is, has never been a Gentile, and no conversion is necessary to alter his or her status.

The child in our she’elah will be born to two Gentile parents and, as a Gentile from birth, will not begin life under the presumption of Jewish status. Our 1983 resolution on “patrilineal” descent does not apply to such a child, and it would seem that we would require conversion in this case.

  1. Conversion in Cases of Adoption. Yet that conclusion is not at all obvious. A number of statements issued over the years by the CCAR and by this Committee declare that a Gentile child adopted by a Jewish family requires no formal giyur. In 1947, the Conference enacted the proposal of its special Committee on Mixed Marriage and Intermarriage that adopted children should not be required “to undergo a special ceremony of conversion but should receive instruction as regular students in the school. The ceremony of Confirmation at the end of the school course shall be considered in lieu of a conversion ceremony.”[7] The 1961 edition of our Rabbi’s Manual states that “a child adopted by a Jewish family is recognized as a Jewish child.”[8] And a 1989 teshuvah of this Committee holds: “Among us as Reform Jews, if no formal conversion took place during infancy then the act of raising the child as a Jew is tantamount to such conversion and nothing else needs to be done.”[9]

On the other hand, the Conference and this Committee have also issued statements that suggest the opposite position, namely that an adopted child requires conversion. A 1978 responsum writes that the adopted child’s naming ceremony, performed in the synagogue once the adoption process is completed, “would be considered sufficient ritual conversion” in most Reform synagogues[10]; that is to say, a ritual conversion is necessary, and the ceremony of naming would be a suitable rite for that purpose. In 1984 this Committee reiterated that the adopted child should be named in the synagogue, “with a berit [i.e., circumcision] for a male, and if the family desires, tevilah, [ritual immersion].” The above are defined as “ritual acts” that constitute “the conversion conducted at the time of infancy.”[11] Gates of Mitzvah (1979), the CCAR’s guide to the Jewish life cycle, tells us that “an adopted child should be named in the synagogue and entered into the berit as soon as the initial legal procedures for adoption have been completed.” If the child is not an infant, “the rabbis should be consulted as to the procedure for formal entry into the Jewish community.”[12] Here, too, a ritual of entry into the Jewish community – i.e., a conversion – follows the adoption. Our current Rabbi’s Manual (1988) recommends that all legal adoption procedures be completed “before finalizing any change of [the child’s] religious status,”[13] indicating once more that the legal adoption and the establishment of the child’s Jewishness are two separate processes. Finally, this Committee explicitly urged conversion for adopted children in a 1999 teshuvah.[14]

 

  1. Two Understandings of Conversion. This, to put it mildly, is a confusing situation. The Conference is on record in support of two contradictory policies on whether an adopted child requires a formal conversion to Judaism. This confusion, we believe, results from the conflict between two different understandings of the nature of conversion and the acquisition of Jewish status. These understandings have appeared in our published literature and have pulled us in different directions on our subject.

The first understanding holds that conversion is primarily a spiritual rather than a legal phenomenon. This conception, which arose fairly early in the history of the American Reform movement, led the Conference in 1893 to abolish the halakhic requirement that the proselyte (ger or giyoret) undergo the traditional rites of milah (male circumcision) and tevilah (ritual immersion).[15] In place of those rites, it was suggested that the prospective Jew-by-choice make a verbal declaration before the rabbi of “his or her intention and firm resolve” to worship the One God exclusively, to follow God’s laws, and “to adhere in life and death, actively and faithfully, to the sacred cause and mission of Israel, as marked out in Holy Writ.”[16] That this became the long-standing policy of the Conference is attested by the 1961 Rabbi’s Manual, which makes no mention of milah and tevilah in its “Conversion Service.” Rather, it asks the ger/giyoret to declare that he or she seeks admittance into “the Jewish faith” as an act of free will, that he or she renounces all previous religious affiliations, that he or she will establish a Jewish home, raise Jewish children and the like.[17] The ceremony of giyur, in other words, testifies not so much to a change in the proselyte’s legal status as to the transformation in his or her religious consciousness and/or belief system. This definition of conversion obviously cannot apply to children. As the Committee on Mixed Marriage noted in 1947,[18] “A young child can hardly be examined as to motives, nor can it be well instructed in the principles of Judaism.”[19] Thus, if we no longer require the traditional rites, “how are we able to convert young children or even infants?” The committee answered that, for infants, “the declaration of the parents to raise them as Jews shall be deemed as sufficient for conversion. This could apply, for example, to adopted children.” Those statements of the Conference that do not require formal conversion for adopted children follow the line of thinking about conversion and the acquisition of Jewish status.

The second understanding is reflected in the pronounced recent trend within the CCAR to restore the initiatory rites for conversion. This trend, noted in a number of our responsa,[20] is part of the larger tendency in contemporary Reform practice to recover many ritual observances set aside by previous generations of Reform Jews.[21] It is also evidence of a different way of thinking about giyur. Conversion in this view is no longer exclusively a matter of personal religious transformation but, as well, the ritual process that signifies one’s entry into the Jewish people, an act of identification with the history and traditions of Israel. It follows that a Gentile who enters the covenant ought to do so through the formal procedures that have historically accompanied that transition, the same ritual process that, according to our tradition, our ancestors undertook prior to their entry into the covenant at Sinai.[22] Thus, in 1979 the Gates of Mitzvah could assert that “we recognize today that there are social, psychological, and religious values associated with the traditional initiatory rites, and therefore recommend that the rabbi acquaint prospective converts with the halachic background and rationale for berit mila, hatafat dam berit, and tevila and offer them the opportunity to observe these rites.”[23] Citing this rationale, the 1988 CCAR Rabbi’s Manual makes provision for milah and tevilah in its “conversion service.”[24] In 2001 the Conference reaffirmed this position: “Rabbis should educate gerim concerning appropriate traditional rituals for the ceremonies of giyur… and should use them as appropriate.”[25] This stance suggests that we are today less likely to draw sharp distinctions between the formal/ritual and the spiritual/intellectual aspects of giyur; both are essential parts of the concept as a whole. And if that is the case, the question posed by the 1947 committee –  “how are we able to convert young children or even infants?” – loses much of its force, inasmuch as children, like adults,  can enter the covenant through milah and tevilah. Our 1988 Rabbi’s Manual, which speaks of the conversion of children as a real and meaningful[26] reflects this second way of thinking about giyur.

  1. Our Position. Faced with these profound differences in Reform practice and doctrine, this Committee has no easy task in arriving at some sort of resolution. Both of these views are well-supported in the history of our movement, and we therefore cannot suggest that either of them is “incorrect.” Nonetheless, we find the second understanding the more persuasive of the two and accordingly reaffirm the decision in our 1999 responsum: Gentile children adopted by Jewish parents should be converted to Judaism. We do so for the following reasons.
  2. Recent Reform practice favors this second understanding of conversion. Although the 1893 resolution, which abolished the requirement of the traditional rites, remains on the books, the Conference has during the last thirty years moved decisively away from the principles that lay at the foundation of that resolution. We have reclaimed the traditional conversion rites for Reform Jewish observance, and we have recommended their use to our colleagues. In so doing we have declared those rites meaningful as formal ritual acts that bind us to the historical experience of the Jewish people.
  3. Consequently, the rationale behind the 1947 report of the Committee on Mixed Marriage, which held that adopted children need not undergo conversion, no longer defines our attitudes on these questions. Our positive re-evaluation of the initiatory rites indicates that conversion is for us a formal act of entry into the Jewish community as well as a transformation of an individual’s religious consciousness. The conversion of children therefore serves as a ritual sign that testifies to their entry into the covenant and to their parents’ commitment to raise them as Jews.
  4. As we argued in our1999 responsum, to say that adopted children need not be converted comes perilously close to saying that the very fact of their adoption grants them their Jewish identity. While adoption does create a family, it is an act of the state, the civil legal administration, an institution that, with all our respect for dina d’malkhuta,[27] does not possess the authority to confer Jewishness or to decide “who is a Jew.”
  5. Even those CCAR statements that dispense with the requirement of conversion for adopted children contemplate ritual substitutes that, for all practical purposes, are conversion. The 1947 Committee on Mixed Marriage report, for example, proposes that Confirmation “be considered in lieu of a conversion ceremony”; in other words, a Jewish ritual act is needed to stand in place of the traditional conversion ceremony. Our 1989 responsum reads “if no formal conversion took place during infancy” – which implies that conversion would be the preferred (lekhatchilah) option – “then the act of raising the child as a Jew is tantamount to such conversion.” That is to say, the child’s Jewish upbringing, which manifestly would include ritual acts like a naming ceremony, Bar/Bat Mitzvah, and Confirmation, is the formal equivalent of giyur. Even our 1961 Rabbi’s Manual, which declared simply that “a child adopted by a Jewish family is recognized as a Jewish child,” follows that statement with these words: “It is proper that such a child be named in the synagogue.”[28] All of these statements concur that the state, through the legal process of adoption, does not have the authority to determine the Jewishness of the child. All of them contemplate some formal Jewish ritual act or set of acts that will testify to the transformation of his/her religious identity. Such a formal act or set of acts is the very definition of giyur. While some of our colleagues may not wish to apply that label to these acts, from a functional standpoint that is what they are and the purpose they serve.
  6. Conclusion. The baby who is the subject of our she’elah should be formally converted to Judaism. We say this because: 1) our 1983 resolution on “patrilineal” descent applies only to children of one biological Jewish parent, 2) adoption in and of itself is insufficient to bestow Jewish identity upon a Gentile child; and 3) a formal Jewish process is therefore required to signify his/her transition to Jewish status. Our tradition calls that process giyur, and so should we.

The structure of that process is a separate question. The CCAR has never repealed its 1893 abolishing the requirement of the initiatory rites; therefore, rabbis who create conversion rituals that do not include these rites can do so within the scope of the Conference’s stated policy. Yet as we have noted, that policy has been significantly revised over the last several decades, both in terms of the practice of our colleagues who now insist upon these rites and in the official pronouncements by the Conference and its constituent bodies supporting their use. We would term this new, revised policy one of “preferred option”: although milah and tevilah are not absolutely required for conversion, our colleagues ought to use them, for adults as well as for children, unless the exigencies of a particular case dictate otherwise. This Committee has previously declared its support for this “preferred option,” and we reaffirm that stance here by quoting our earlier statement:[29]

In general, the tendency of this Committee is to urge in the strongest terms that all proselytes undergo the traditional rites for entry into the covenant. We do so, not because we suppose that Orthodox Jews will recognize the validity of our conversions, but because we regard these practices as a positive Jewish standard that applies to us as it does to all other Jews. This testifies to our conviction that when we accept a ger or giyoret into our midst, we convert him or her to Judaism. Although we presume that our proselytes will remain firm in their commitment to a Reform approach to our faith and tradition, we do not require that they do so; we do not make their conversion contingent upon their staying within our fold. We are not in the business of creating a separate sect, cut off from the rest of our Jewish family. Rather, when we accept a proselyte, we admit this person into am yisrael, the Jewish community as a whole, a living and historical enterprise of which we are an organic part. We therefore believe that it is appropriate and preferable to mark the moment of conversion not simply with liturgy of our own creation but precisely with those rituals that are and have been for centuries employed by the Jewish community as a whole.

 

NOTES

  1. The policy applies equally to the offspring of all mixed marriages, i.e., where one parent (either the father or the mother) is Jewish.
  2. CCAR Yearbook 94 (1984), 174-179; Ma`agalei Tzedek: Rabbi’s Manual (New York: Central Conference of American Rabbis, 1988), 226; Contemporary American Reform Responsa (CARR) no. 38 ().
  3. On this point, see Teshuvot for the Nineties (TFN), no. 5753.12, pp. 201-207 (https://www.ccarnet.org/ccar-responsa/tfn-no-5753-12-201-207/).
  4. See New American Reform Responsa (NARR), no. 125 ().
  5. That is, the biological offspring of a Jewish woman is a Jew, regardless of the Jewishness of its father, while the biological offspring of a non-Jewish woman is a Gentile even if its father is Jewish. See the final clause of M. Kidushin 3:12: “if a woman is legally incapable of contracting valid kidushin (Jewish marriage) with this man (i.e., the father of her offspring) or with any other man, the offspring follows her status. And who is this? This is the offspring of a Gentile woman or a Gentile maidservant.” Maimonides codifies this as follows: “This is the rule: the biological offspring (kol haba) of a Gentile slave or a Gentile or a Gentile maidservant or a Gentile woman follows the mother’s status; the status of the father is irrelevant” (Yad, Isurei Bi’ah 15:4).
  6. If the child is Jewish from birth, why do we require the performance of “appropriate and timely public and formal acts of identification” in order to establish his/her Jewish status? See CARR no. 38 (note 2, above): the Conference recognized that Jewish identification, in an era when mixed marriage has become a widespread phenomenon, may have more to do with one’s education and upbringing than with the mere fact of one’s “belonging” to the Jewish community. For this reason, we introduced a stringency into the traditional halakhic definition of Jewish status, in that our position requires that the Jewishness of the child of one Jewish parent – even if that parent is the mother – be “established” (i.e., confirmed) by the performance of those “appropriate and timely” acts.
  7. CCAR Yearbook 57 (1947), at 170-171. The committee was chaired by our teacher Rabbi Solomon B. Freehof.
  8. Rabbi’s Manual, Revised Edition (New York: Central Conference of American Rabbis, 1961), 111.
  9. “Jewishness of an Adopted Child”, NARR, no. 118 (https://www.ccarnet.org/ccar-responsa/narr-185-187/).
  10. American Reform Responsa (ARR), no. 63 ().
  11. CARR, no. 37 ().
  12. Gates of Mitzvah (New York: Central Conference of American Rabbis, 1979), D-2 and D-3, p. 18.
  13. Ma`agalei Tzedek (note 2, above), 224.
  14. CCAR Responsum 5759.1, “Conversion for Adopted Children” (https://www.ccarnet.org/ccar-responsa/nyp-no-5759-1/).
  15. CCAR Yearbook 3 (1893), 69ff; ARR, no. 68 (). The resolution follows a long and detailed report by a committee, chaired by Rabbi Isaac Mayer Wise, that claims to prove that the requirements of milah and tevilah for conversion were matters of minhag, customary practice, and were never truly demanded by Biblical or Rabbinic law. Our Committee has subsequently shown this report to be based upon faulty scholarship and dubious reasoning; see our responsum no. 5756.13 (). Nonetheless, the resolution abolishing the initiatory rites remains on the books as the official policy of the CCAR, though this policy has been reinterpreted and modified through the years; see below in the text.
  16. ARR, no. 68 (see preceding note), end.
  17. Rabbi’s Manual (see note 8, above, 17-22).
  18. See note 7, above.
  19. We should note that the halakhic tradition encounters much the same problem with the notion of giyur katan, the conversion of a child, who by definition lacks the legal capacity to make a responsible decision to accept the Torah and “the yoke of the mitzvot.” The solution that Jewish law offers to this difficulty is what we might call “provisional conversion.” A Gentile child can be converted to Judaism on the strength of the presumption that he or she would consent to receive this “benefit” were he or she old enough legally to give or withhold consent. Nonetheless, upon reaching the age of legal majority the child does have the power to renounce this presumption, to refuse the conversion; in such a case, the giyur is annulled retroactively. See B. Ketubot 11a.
  20. ARR, no. 69 (); CARR, no. 44 (), no. 45 (), no. 47 (dealing with infant conversion), and 49 (conversion of a child; TFN, no. 5752.2 (hatafat dam berit for a child);  CCAR Responsum 5756.6 () and 5756.13 (conversion of a child).
  21. Much has been written about this tendency, which some call the “return to tradition” in Reform Judaism, and we cannot do full justice here to the religious, cultural, and sociological aspects of this complex phenomenon. We would simply note that many ritual observances that were once criticized as either irrelevant or counterproductive to the goal of “modern spiritual elevation” (Pittsburgh Platform, 1885; see https://www.ccarnet.org/rabbinic-voice/platforms/article-declaration-principles/) are now regarded as appropriate expressions of our unique Jewish religious consciousness. For a fuller discussion, see our responsum no. 5759.7, “The Second Festival Day and Reform Judaism” (https://www.ccarnet.org/ccar-responsa/nyp-no-5759-7/) at notes 6-10.
  22. B. Keritot 9a and Yevamot 46a-b; Yad, Isurei Bi’ah 13:1-4: the Israelites entered the covenant through milah and tevilah.
  23. Gates of Mitzvah (note 12, above), 146.
  24. Ma`agalei Tzedek (note 2, above), 210-214, 232.
  25. Central Conference of American Rabbis, Divrei Giyur: Guidelines for Rabbis Working with Prospective Converts, 2001 (on file with CCAR), section 8b.
  26. See the responsa so indicated in note 20, above. See also Ma`agalei Tzedek (note 2, above), 233-234, on “Conversion of a Child.”
  27. On this subject see our responsum no. 5757.1 (https://www.ccarnet.org/ccar-responsa/nyp-no-5757-1/), section 1.
  28. See note 8, above.
  29. CCAR Responsum 5756.13 (note 20, above), section III.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5767.3

CCAR RESPONSA

5767.3

A Question of Disinterment

She’elah

A congregant has approached me with the following question. There is a new veterans cemetery opening in Palm Beach, Florida. Her husband is buried in a Jewish cemetery further south (almost 3 hours). The area around that Jewish cemetery, moreover, has changed and is “not safe.” The Veterans Administration (VA) will cover the costs of disinterment and reburial in the veterans’ cemetery closer to the woman and her children. There is not a specific Jewish area, but the grave would have a Jewish marker. The VA would also cover the cost of her eventual burial and the plot next to her husband. Is moving from a specifically Jewish cemetery where no one is able to visit to another cemetery that does not have a specific Jewish area permissible in the view of the Reform approaches to halakhah? (Rabbi Michael Birnholz, Vero Beach, FL)

Teshuvah

The fundamental issue underlying our she’elah is that of disinterment: under what circumstances is it permitted to remove a body from its place of burial? As we shall see, halakhic literature has much to say about this question, and our own responsa have addressed it in some detail. As we shall also see, these writings do not lead us to a sure and certain conclusion. This uncertainty results, in part, from the always-present difficulty of applying a general principle to a specific and necessarily unique set of circumstances.[1] It occurs in this case, as well, for the reverse reason: a particular solution to this specific case may have unintended ramifications were we to apply it in general, that is, to other cases that may resemble this one.

1. Disinterment: The Prohibition and Its Exceptions. The prohibition against removing a corpse from its grave is found in the Shulchan Arukh,[2] which draws the ruling from a number of Talmudic[3] and earlier halakhic sources.[4] Various reasons are cited for this prohibition, among them that disinterment “is painful for the dead, because it arouses in them the fear of the Day of Judgment.”[5] Other authorities provide what is to our way of thinking a  more persuasive explanation, namely that the opening of the grave and the removal of the remains is an act of nivul hamet, contemptible treatment of the corpse.[6] It follows that we might waive this prohibition under certain circumstances, when the disinterment is considered honorable (rather than contemptible) treatment of the corpse or when we can presume that the deceased would have wanted to be moved to another burial place. And, indeed, the tradition permits disinterment, for example, to move the deceased to his or her family plot,[7] for reburial in the land of Israel,[8]  if the deceased had left instructions that he be buried elsewhere, or if the burial had taken place under the advance stipulation that the body be moved to another location.[9] Similarly, the body may be exhumed when there is a concern that the grave “cannot be properly protected” from vandalism or from natural erosion; “it is a mitzvah” to bury the corpse in another grave to spare it distress (tsa`ar) and disgraceful treatment (bizayon).[10]

Based upon the above, it would be possible to construct a good argument for permitting disinterment in this case. The ultimate intention is the creation of a family burial place, and we have seen that the tradition permits disinterment when the object is reburial in a family plot. The nearness of the new cemetery means that the deceased’s wife and daughters will visit his grave more frequently, and this is surely an act of kevod hamet, rendering honor to the dead, as well as nichum avelim, a source of comfort to the mourners. It is also quite conceivable that the husband would have agreed to the plan of disinterment, and this might have the force of an advance stipulation such as that described above. Finally, that the cemetery where the husband currently lies buried is “not safe” is further reason, according to our tradition, to consider disinterment.

2. Objections to the Disinterment. On the other hand, this argument is not without its difficulties. Let us consider some of them here.

 

  • The “family plot” contention is somewhat forced. For one thing, the term is our translation of the Hebrew kever avot, which identifies the “family” resting place with the burial site of one’s parents and ancestors. Some authorities, accordingly, would limit the permit for disinterment to such instances and would not extend it to cover burial next to a spouse. We, along with other authorities, are comfortable with a more expansive definition of “family.”[11] Nonetheless, we would note that when Jewish tradition speaks of disinterment and reburial in kever avot, it has in mind an already existing burial site.[12] In our case, the wife does not seek to rebury her husband in such an existing site (say, next to his parents) but rather to create a new “family plot.” In so doing, she would uproot the existing family burial site, namely at the cemetery where her husband currently rests. None of the authorities who allow disinterment for purposes of reburial in kever avotrefer to a situation such as this. They would likely urge the opposite course: the wife should wish to be buried next to her husband, at the existing “family plot,” rather than to disturb his corpse for burial in a place where, as yet, no family members have been laid to rest.
  • The argument that the husband’s cemetery is in an area that is “not safe” is a serious one, but it is difficult to measure. R. Moshe Feinstein permits the removal of all the bodies buried in a cemetery that is located in an unsafe neighborhood and where it is impossible to protect it against vandalism,[13] and our teacher R. Solomon B. Freehof concurs that disinterment is “the optimal solution” in such a situation.[14] But just how “unsafe” is the cemetery where this woman’s husband lies buried? The members of this Committee cannot make that determination. We would suggest, moreover, that the claim that the cemetery is located in an “unsafe” area raises issues of special sensitivity. That claim, to our sorrow, is sometimes used as a code-phrase to express a sentiment that we may be unwilling to utter openly, one that might call into question our Reform Jewish commitment to social justice.[15] We have no reason to believe that the congregant who brings this she’elahis motivated by such a sentiment. Still, it is up to her rabbi to judge whether and to what extent her concern over the security of the current cemetery is warranted by the facts.
  • Removing the deceased to a cemetery “closer to the woman and her children” will enable them to visit his grave more often. That is surely a good thing, but we think it is insufficient grounds to permit disinterment. Our society (we speak here principally of the United States) has for some time been an increasingly transient one. Many of us live far away from what was once our family home, and we tend not infrequently to move from place to place for purposes of education, employment, professional advancement, and retirement. In our travels we have generally not thought to uproot our dead and to bring them along with us. We have preferred, in devotion to our Jewish tradition, to leave them undisturbed in their final resting places and to visit them whenever we can. This approach certainly places a burden of inconvenience upon us, but we have thought that it better comports with the specific Jewish way of rendering honor to the deceased (kevod hamet).[16] Again, we have no reason to believe that the congregant in this case is motivated primarily by considerations of personal convenience. Yet should we issue an affirmative answer to her request, that answer would rightly be cited as a precedent by others in similar circumstances who might in fact seek to disinter and to move their dead largely out of such reasons. That is a line we can ill afford to cross.
  • Finally, we would discourage the removal of the dead from a Jewish cemetery to a non-Jewish cemetery. Although Jewish law imposes no formal (.e., Toraitic or Rabbinic) requirement that the dead be buried in a “Jewish cemetery,” Jewish communities have by long-standing custom acquired land for the purpose of establishing their own burial places.[17] It is there that we ought to lay our dead to rest. We have, indeed, no objection to the burial of our dead in national military cemeteries that are not associated with any particular religion, since those burial grounds are considered the property of all the country’s citizens. Yet from this absence of an “objection” we have never deduced that it is permissible to disinter a Jew from a Jewish cemetery for reburial in such a cemetery, and we have in fact decided otherwise.[18] This, too, is a weighty consideration against approval of the widow’s request in our case.

 

3. Conclusion. Jewish tradition does not unequivocally prohibit this wife’s request for the removal of her husband’s remains to the veterans’ cemetery closer to her home. As we have said, one could construct a good argument from the sources in support of an affirmative response. But the objections that we have cited are serious enough to give us pause, particularly because a “yes” answer to this she’elah might lead to undesirable ramifications in future cases. Given our general opposition to disinterment, we would urge the rabbi to discourage the widow and her family from taking this step. He should support their request only if he is convinced that the arguments brought in support of it – especially the concern over the lack of safety at the existing cemetery– are truly substantive and persuasive.

NOTES

1.         This point parallels the famous insight of U.S. Supreme Court Justice Oliver Wendell Holmes, Jr., who wrote: “General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise” (Lochner v. New York, 198 U.S. 45, 76). In Jewish law, too, the correct application of the rules is frequently not determinable by way of logical syllogism. It requires, instead, an act of judgment by the interpreter(s). Judgment, by its nature, is controversial in a way that logic and mathematics are not. It is established by argument, not demonstrated by proof, and in any given case a different judgment might arguably be a better one. Yet no sort of legal or religious interpretation can occur without judgment and argument. It is for this reason that rabbis write responsa to argue for their conclusions and that their readers are invited to join in discussion and debate over them.

2.         Yoreh De`ah 363:1.

3.         Y. Mo`ed Katan 2:4 (81b); Semachot (Evel Rabati) 13:7.

4.         Sefer HaRa’avyah III, Mo`ed Katan, ch. 832; Nachmanides, Torat Ha’adam, inyan hakevurah (ed. Chavel, 119); Or Zaru`a 1, Responsa, no. 755, and 2:419-420; Sefer HaKolbo, ch. 60; Tur, Yoreh De`ah 363.

5.         Sefer HaKolbo, ch.114, citing Job 3:13 and I Samuel 28:15 as prooftexts; R. Yehoshua Falk Katz, Perishah to Tur, Yoreh De`ah 363, no. 1; Turei Zahav and Siftei Kohen to Shulchan Arukh Yoreh De`ah 363:1.

6.         R. Ya`akov Reischer (18th-cent. Germany) refers to nivul as the “principle reason” for the prohibition and plays down the theme of fear of Judgment Day; Resp. Shevut Ya`akov 2:103. See also R. Zvi Ashkenazi (d. 1718; Germany/Poland), Resp. Hakham Zvi, no. 50.

7.         Shulchan Arukh Yoreh De`ah 363:1: “it is pleasing to a person that he be buried next to his ancestors.” Siftei Kohen ad loc.: burial with one’s ancestors “is an honor to the deceased.”

8.         Shulchan Arukh Yoreh De`ah 363:1. The reasons (ad loc.): burial in Eretz Yisrael affects atonement (kaparah) for one’s sins (Siftei Kohen), and we can presume that the deceased would have wanted his final resting place to be in the land of Israel (R. Eliyahu, Gaon of Vilna, Bi’ur HaGra).

9.         Shulchan Arukh ad loc. The theory here is that if the deceased is buried in a place not of his or her own choosing, he or she has not truly “acquired ownership” of that grave; Resp. Chatam Sofer 6:37 and Resp. Maharam Schick, Yoreh De`ah 354.

10.       Or Zaru`a 2:420; Shulchan Arukh Yoreh De`ah 363:1.

11.       R. Moshe Feinstein, Resp. Igerot Moshe, Yoreh De`ah 1:236, allows disinterment in this sort of case only for the burial of a child next to a parent. On the other hand, he cites the differing view of R. Meir Simchah of Dvinsk, Or Sameach to Mishneh Torah, Avel 14:15. See as well the discussion in R. Yekutiel Greenwald, Kol Bo `al Aveilut, 233-234

12.       See Turei Zahav, Yoreh De`ah 363, no. 2; Resp. Knesset Yechezkel (R. Yechezkel Katznellenbogen, 18th century Germany), no. 43. The Chatam Sofer (6:37) sided with those who permitted the exhumation and reburial of R. Mordekhai Benet in “the burial place of his ancestors (avotav) and his relatives (mishpachto).”

13.       Resp. Igerot Moshe, Yoreh De`ah 1:246.

14.       American Reform Responsa (ARR), no. 115 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=115&year=arr ).

15.       For example, the Feinstein responsum cited in note 13 refers explicitly to a Jewish cemetery located in a “black neighborhood” (shekhunah kushit) where the residents “treat the place contemptibly, throwing all sorts of trash into it. The cemetery cannot be protected, because each time the fence is repaired they break through it again. The expense incurred, moreover, is greater than the community can bear.” This may have been an objective and accurate description of the security situation at the graveyard (the she’elah came from New Orleans in late 1951). Yet it makes for uncomfortable reading, especially in that it assigns the responsibility for the damage not to unspecified vandals but to the fact that the cemetery lies in what is now a “black neighborhood.”

16.       One can argue, of course, that it is possible to show honor for the dead in ways other than those specified by Jewish tradition. We would agree, but as we have written elsewhere, “(it) is true that concepts such as “honor” and “disgrace” do not admit of objective definition. All this means, however, is that such terms can only be defined from within a particular social context; to reach these definitions, we must choose to work within a particular culture’s set of values and affirmations”; Responsa Committee, no. 5766.2, “When A Parent Requests Cremation.” The particular culture within which we choose to work is the religious tradition of the Jewish people, a choice that accounts for many of the conclusions that we reach in our work.

17.       See, in general, Contemporary American Reform Responsa (CARR), no. 105 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=105&year=carr ). R. Yitzchak Elchanan Spektor (18th century, Lithuania) argued that this custom stems from the concern that, should we not own the cemetery, we may one day be forced by its owners to remove our dead from there (Resp. Ein Yitzchak, Yoreh De`ah, no. 34).

18.       Responsa Committee, no. 57565, “Disinterment from a Jewish to a Nondenominational Cemetery” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=5&year=5756 ).

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5768.1

CCAR RESPONSA

5768.1

Two Questions Concerning Medical Treatment for End-of-Life Patients

She’elah

1. A woman in our congregation died after a nine-month battle with lung cancer. When she was diagnosed, her oncologist told her it was incurable, but that with treatment, there might be hope for remission. Later that physician revealed that without treatment, she probably would have lived for about six months. According to statistical probability published by nationally recognized cancer organizations, life expectancy for her condition is about nine months. The patient received four variations of chemotherapy, plus radiation, all of which proved to be consistently ineffective. These procedures never resulted in shrinking the size of her tumors nor putting her into remission. The treatment was also very costly, though fortunately most of these expenses were covered by Medicare, supplemented by private medical insurance. Furthermore, it produced the usual side effects, e.g., nausea, memory confusion, hair loss, fatigue, great pain, loss of strength, difficulty in breathing, etc., which compromised the quality of her life. From the perspective of Jewish tradition, was she morally obligated to pursue treatment which gave her an additional three months of life, but involved enormous cost and physical and mental distress? Does the notion of not performing heroic measures when the situation is hopeless apply only to a goses/goseset or can it be applied at an earlier stage when a patient is declared incurable but not yet dying? (Rabbi Samuel Stahl, San Antonio, TX)

2. The 80-year-old mother of one of my congregants is choosing to starve herself to death. She says that her quality of life is no longer what she wants it to be – she is in a wheelchair but otherwise is in relatively good health for someone her age – and she simply does not want to live anymore. Should my congregant allow her mother starve herself to death, or should she intervene, for example, by ordering forced nutrition and hydration? (Rabbi George Gittelman, Santa Rosa, CA)

Teshuvah.

We have combined these two very different cases into the structure of one responsum, because both of them raise the question of our Jewish ethical obligations toward medical treatment of terminally-ill patients. That question, simply put, is one of cessation: under what circumstances, if any, is it permissible to discontinue medical treatment, or to refrain from initiating such treatment, for a person suffering from a terminal illness? We have addressed this subject on a number of occasions, most recently in our 1994 responsum “Treatment of the Terminally Ill.”[1] The reader can turn to that responsum for an extended discussion of our position and of the traditional source materials upon which it rests. Here, we shall summarize that position, so that we can use it to help clarify the issues raised in each of our two cases.

Our 1994 teshuvah begins with a consideration of euthanasia and assisted suicide (often referred to as “physician-assisted suicide”) as responses to terminal illness. We reject both of those courses of action on Jewish as well as general moral grounds: to hasten the death of a person, even of a dying person and even out of compassionate motivations, is tantamount to bloodshed. While Jewish tradition permits us, indeed requires us to administer palliative care and pain control therapy to manage and to relieve the discomfort that the patient suffers,[2] it does not regard euthanasia or suicide as legitimate functions of medical practice. On the other hand, Jewish tradition has long distinguished between “hastening death” (which is forbidden) and “removing an impediment to death” (which is permitted). Medieval halakhic sources permit the removal of any factor that is deemed to cause an unnecessary delay in the death of the goses (or goseset), one whose death is imminent.[3] While those sources mention delaying factors not regarded as medical treatments, it seems plausible to extend this permit to the cessation of actual medical therapies that, at this very end stage of the patient’s life, no longer offer a reasonable prospect of “healing” but can serve only to maintain the patient in this moribund state. The difficulty with this line of thinking is that it does not address the situation of a patient who, though diagnosed as “terminally ill” by the consensus of medical opinion, has not yet reached the stage of gesisah, the very last hours or minutes of life.

Our responsum therefore suggests another conceptual framework for thinking about the treatment of the terminally ill.[4] We begin with the definition of the mitzvah of refu’ah, the duty to heal (i.e., to practice medicine) as understood by Jewish tradition. That duty holds only when it is possible to accomplish it, that is, when the measures to be applied to the patient serve some accepted therapeutic purpose.[5] It follows that if the drugs, surgeries, and other procedures do not serve such a purpose – if they lack what our responsum calls “therapeutic effectiveness” – they are not (or are no longer) regarded as “medicine,” as measures defined as obligatory under our duty to heal. Those procedures, to be sure, are not forbidden; the patient and the patient’s family may wish to accept them on the slim chance that they will do some good. But they are not obligatory because they are not “medicine.” The patient is entitled to refuse them or to discontinue them once they are deemed to have lost their therapeutic effectiveness.

We note in that responsum that the standard of “therapeutic effectiveness” is by no means simple to apply to specific cases, since “(t)erms such as ‘therapeutic’ and ‘successful treatment’ are inherently vague and impossible to define with precision. In many situations it will be problematic if not impossible to determine when or even if the prescribed regime of therapy has lost its medical value.” Some decisions concerning the non-application or discontinuation of treatment will indeed be difficult to make. On the other hand, “(t)he standard of therapeutic effectiveness, as a tool by which to make judgments concerning medical treatment, allows us to draw some conclusions with moral confidence.”

With the above in mind, let us consider our two she’elot.

1. The case of the lung cancer patient. This question raises for us the issue of how we apply the standard of “therapeutic effectiveness” (and its opposite, “therapeutic futility”) to a specific instance. The oncologist informed the patient that with the proposed treatment “there might be hope for remission” and that without it her life expectancy would be six months. Remission certainly falls under the definition of an “accepted medical purpose” in the treatment of cancer, and to the extent that there is a reasonable prospect that the treatment will lead to remission, we would judge the treatment to be medically effective. But did such a “reasonable prospect” exist? Judging from the information provided by the sho’el, the most that this patient could have reasonably hoped for from the treatment was a life expectancy of nine months. Hence the question: “was she morally obligated to pursue treatment which gave her an additional three months of life?” Our answer would be “no.” An additional three months of life, filled with the pain and discomfort of chemotherapy and radiation regimens, do not meet the standard of “an accepted medical purpose.” On the contrary: measures that would lead to this result are best understood as prolonging the suffering of a dying person, a result that would surely qualify as therapeutic futility. In our 1994 responsum, we wrote the following concerning the sort of “heroic measures” described in this case:

Medical science has made immeasurable advances during recent times, and we are thankful for that fact. Doctors today are able to prevent and to cure disease, to offer hope to the sick and disabled to an extent that past generations could scarcely imagine. Yet there comes a point in time when all the technologies, the chemicals, the surgeries, and the machines which comprise the lifesaving arsenal of modern medicine become counterproductive, a point when all that medical science can effectively do for a patient is to indefinitely delay his inevitable death. This is not pikuach nefesh; this is not medicine; this is not what physicians, as agents of healing, are supposed to do. There is neither meaning nor purpose in maintaining these treatments… They are not refu’ah; no commandments are fulfilled thereby. Yes, life is a precious thing, and every moment of it should be regarded as God’s gift. But we are not required under any reading of the tradition that makes sense to us to buy additional moments of life by undertaking useless and pointless medical treatment.

The patient would certainly have been entitled to accept the proposed treatment on the slight possibility that it might have led to the cancer’s remission. Similarly, should a patient see an additional three months of life as a positive good, as an opportunity for purposeful living, there is no reason why he or she should not choose to accept the treatment regimen. Our point here is to address the question of moral obligation as posed by our sho’el. One is obligated to accept treatment that offers a reasonable prospect of therapeutic effectiveness, the attainment of an accepted medical purpose. The purchase of an additional three months of life in a pain-filled and dying condition does not, in our judgment, meet that standard. If such was the best that this patient could reasonably have hoped for, she was not morally obligated to accept the treatment.

2. The Case of the Eighty-Year-Old Mother. This case demands that we consider the very definition of a “terminal illness,” the medical situation that raises the possibility of the withdrawal or cessation of medical treatment. This patient’s condition should not be defined as such; she is not “terminally ill.” Her confinement to a wheelchair does not pose a mortal threat to her. Although she is dissatisfied with her “quality of life,” she is said to be otherwise in good health. The choice to end her life would be defined as suicide and not the discontinuation of futile medical treatment. The fact that a person does not wish to live with a certain permanent disability does not render that disability a “terminal illness,” and it most certainly does not justify the self-destructive measures that this person contemplates. The proper recourse would seem to be counseling, psychological and pastoral intervention, rather than acceding to her expressed desire to starve herself to death.

On the other hand, while it is clear to us that this person is morally obligated to accept food and water, the question of forcing her to do so is not as easy to decide. As we note in a recent teshuvah,[6] even though an individual is required by Jewish tradition to accept proven medical therapy, the administration of that therapy against the patient’s will may involve a degree of force and violence that would cause harm to the patient and rob the treatment of some or much of its therapeutic value. The same would be true of nutrition and hydration, whether or not we define these in the same category as “medical therapy.”[7] Clearly, force feeding is an absolutely last resort, and the patient’s daughter and physicians must weigh the conflicting factors most carefully before authorizing such an extreme step.

NOTES

1. Teshuvot for the Nineties (TFN), no. 5754.14, pp. 337-363, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=14&year=5754 .

2. The halakhic tradition defines the treatment of pain as an appropriate medical objective; R. Ya`akov Emden (18th-century Germany), Mor Uketzi`ah, ch. 328. The 20th-century Israeli halakhist R. Eliezer Yehudah Waldenberg holds that the treatment of pain is an appropriate medical objective even if it is “risky” (that is, if it involves danger to the patient’s life). Thus, for example, physicians may administer massive doses of pain medication, so long as the intent of the procedure is not to cause the patient’s death but to relive his or her suffering. (Resp. Tzitz Eliezer 13:87). See our responsum no. 5754.14 (note 1, above), at note 19, and R. Solomon B. Freehof in American Reform Responsa, no. 76, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=76&year=arr .

3. See Shulchan Arukh, Yoreh De`ah 339:2, which suggests that three days is the maximum limit of life expectancy for one who enters a state of gesisah.

4. TFN, no. 5754.14 (note 1, above), at section III.

5. The traditional term for such a therapy is refu’ah bedukah or vada’it, a “proven” or “certain” remedy, a course of treatment generally indicated by these symptoms and that offers a reasonable prospect of therapeutic success. See responsum no. 5754.14 (note 1, above), at notes 37-40.

6. CCAR Responsum 5766.3, “Hunger Strike: On the Force Feeding of Prisoners”, http://data.ccarnet.org/cgi-bin/respdisp.pl?file=3&year=5766 , at notes 34-36.

7. For discussion, see TFN, no. 5754.14 (note 1, above), section V, “On Artificial Nutrition and Hydration.”

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5768.4

CCAR RESPONSA

5768.4

Caesarian and Circumcision

She’elah

A member of our synagogue gave birth to a boy by Caesarian section (C-section) on Shabbat. The boy’s parents attempted to arrange a berit milah on the eighth day of the child’s life, also a Shabbat, but an Orthodox mohel told them C-section baby is not circumcised on a Shabbat or a festival. What is the basis in traditional Jewish law for this position? Should a Reform mohel observe the prohibition against performing the milah on the eighth day of the child’s life if that day coincides with Shabbat or a yom tov? (Rabbi Michael Dolgin, Toronto, ON)

Teshuvah.

This she’elah involves a technical point of Jewish ritual law. Yet like many such seemingly “minor” issues, it raises some interesting questions as to how we are to read and to make sense of our traditional sources when these are equivocal. And it raises similar questions concerning the way we interpret our own Reform Jewish sources when these, too, lead to differing conclusions.

1. The Traditional Prohibition. The Orthodox mohel is correct in his understanding of the halakhah, if by that term we mean “the law as stated in the major codes.”[1] While all agree that the infant boy is circumcised on the eighth day of his life, even if that day should occur on a Shabbat or a festival,[2] both Maimonides[3] and the Shulchan Arukh[4] rule that the child delivered through Caesarian section (yotzei dofen) is not to be circumcised on those days. Yet the matter is rather more complicated. The Talmudic source of this rule is B. Shabbat 135a-b, where Rav Assi draws a midrashic link between Leviticus 12:3 (the child is circumcised on the eighth day) and Leviticus 12:1, which speaks of tumat leidah, the ritual defilement that accompanies birth. From that link, he learns that the child is circumcised on the eighth day only when the mother contracts this defilement. Since the woman who delivers by means of C-section does not contract tumat leidah (M. Nidah 8:1), her baby is circumcised at birth.[5] The Talmud objects to Rav Assi’s conclusion by citing an Amoraic dispute in which both authorities are said to agree that the C-section baby is indeed circumcised on his eighth day but disagree as to whether that circumcision should take place on a Shabbat. The Talmud further cites a dispute among the earlier Tanaim as to whether, in fact, the issue of tumat leidah has anything to do with whether the child is to be circumcised on the eighth day.[6] The passage does not explicitly resolve these disagreements, and the post-Talmudic authorities are not surprisingly divided as to the proper decision. Some rule according to Rav Assi: the C-section baby is not to be circumcised on the eighth day, and his milah therefore does not override Shabbat.[7] Others say that the halakhah definitely does not follow Rav Assi, so that the milah for this baby must occur on the eighth day even should that fall on a Shabbat or a festival.[8] And others, including Maimonides and the Shulchan Arukh, unable to decide between the above alternatives, take what we would call the “cautious approach” and rule stringently on both matters:[9] the C-section baby should be circumcised on the eighth day (in case the law in fact requires this) but not on Shabbat or festivals (in case the law in fact forbids this).[10] This stance has become the predominant traditional practice and, in turn, explains what the Orthodox mohel told the parents to whom our sho’el refers.

We suggested above that the Talmudic source of this halakhah is equivocal. This is because it does not clearly indicate the correct rule and has led to conflicting legal interpretations over the centuries. The “cautious approach” of the major codifiers is therefore a reasonable one. When the arguments on both sides of a dispute are so closely balanced that it is impossible to decide with confidence between them, it makes sense to steer a middle course and to affirm the central concerns of both points of view. Halakhic authorities often resort to this device.[11] We, however, are not convinced that the cautious approach was necessary in this case, because it appears to us, as it appears to several rishonim,[12] that the dispute is not so equally balanced. A careful reading of the Talmudic passage indicates that a majority of the Sages named therein reject the connection that Rav Assi makes between tumat leidah and the date of circumcision. In our view, therefore, the better reading of that passage is that the halakhah definitely does not follow Rav Assi:[13] the C-section baby ought to be circumcised on the eighth day, even on Shabbat and festivals.

2. The Reform Halakhic Tradition. The situation in Reform practice is also equivocal, because the two Reform responsa that address this issue arrive at conflicting decisions. Rabbi Solomon B. Freehof rejects the traditional prohibition and rules that we circumcise the C-section baby on Shabbat or a festival.[14] Rabbi Walter Jacob, meanwhile, writes that “we must respectfully disagree” with Rabbi Freehof’s decision[15] and that we should postpone the milah of such a child to the next day.[16] Given that we must choose between these two positions, let us examine the arguments that each of them presents.

Rabbi Freehof criticizes the traditional prohibition on the grounds that the ruling “overextends the statement in the Mishnah (Shabbat 19:3) which speaks only of the androgynous and does not at all mention the Caesarian child.” This is true, but the Mishnah’s silence concerning the C-section baby does not mean that Jewish law ignores the subject. This particular rule, as we have seen, is based not on the Mishnah but on a series of Amoraic and Tanaitic statements brought forth in the Talmud (B. Shabbat 135a-b). All subsequent authorities base their rulings on this Talmudic source, and they do not cite the Mishnah’s silence as an argument either pro or con. As Rabbi Freehof does not discuss the Talmudic source, his responsum offers no substantive argument against the prohibition as registered by Maimonides and the Shulchan Arukh.

Rabbi Jacob upholds the prohibition because “there is neither a Reform ideological reason for a change nor any other reason.” He thereby invokes a general principle of Reform halakhic decision making (pesak): the “default” position of our responsa should be to affirm the traditional practice unless there is sufficient cause based in Reform doctrine that would lead us to depart from that standard. This principle is a powerful one. The affirmation of traditional practice, particularly because that standard helps to unite us with the rest of the Jewish community, has often informed our thinking.[17] Yet in this instance we can identify at least two good “Reform ideological reasons” that do argue for a departure from the traditional practice.

a. Talmudic halakhah treats the C-section baby as an exceptional case because, in the view of the Sages, such a child was “delivered” but not “born” in the usual sense of that term.[18] But this notion is foreign to our contemporary way of thinking. Caesarian section, once considered extremely dangerous and hence very rarely performed, has become much safer and more commonplace; in 2002, nearly 26% of all births in the United States were C-sections.[19] In the conceptual world in which we Reform Jews live and function it no longer makes sense to draw legal and ritual distinctions between babies delivered in the “natural” way and those brought forth from the womb via C-section. To put it another way, the means by which this child has entered the world is much less important to us than the fact that he has entered it.

b. To enforce the traditional prohibition may distract our people’s attention from the religious significance of the mitzvah of berit milah. That mitzvah is performed, in the absence of medical complications,[20] on the eighth day of a Jewish boy’s life, even if that day is a Shabbat or a festival. The timing is an essential element of the mitzvah; we have consistently held that circumcision must take place on the eighth day and be neither advanced nor postponed out of reasons of convenience.[21] To delay the milah from Shabbat until Sunday in this case, on grounds that will strike many as a technicality devoid of substance and relevance, may well persuade members of our community that it is permissible to postpone milah for other, unacceptable reasons (i.e., for the sake of convenience) that they will nonetheless take more seriously.

3. Conclusion. We hold that the Jewish child delivered by Caesarian section should be circumcised on his eighth day, even if the eighth day is a Shabbat or a festival. We do so because the traditional rule that prohibits such circumcisions is grounded upon a weak and contested reading of the halakhic sources; because the prohibition is no longer coherent with our understanding of childbirth; and because the maintenance of the prohibition conflicts with our insistence upon the eighth day as the proper time for the mitzvah of berit milah.

It is important to note, however, that all C-sections are not the same. Sometimes the procedure is performed, as it was always performed in the past, as an emergency measure, to deliver a child when a problem developed with a vaginal birth. Today, however, it is often the case that physicians will routinely schedule C-sections for women whom they know or fear will have difficulty giving birth vaginally. For purposes of berit milah, we consider an emergency C-section no different than a regular birth. A baby born as the result of an unscheduled C-section should be circumcised on the eighth day even if that day is Shabbat or a festival. However, a scheduled C-section is a different matter, since parents in that case have the option to choose a day that would avoid scheduling a berit milah on Shabbat or a festival. In those cases, the berit milah should be performed after Shabbat or the festival, in keeping with traditional practice.

NOTES

1. This note is not the place for an extended discussion of the nature of halakhah. It bears emphasis, however, that our entire Reform responsa enterprise is based upon the assertion that “the” halakhah is not to be identified with any particular, formal statement of it, whether that statement is a paragraph in the Shulchan Arukh or whether it reflects the consensus opinion among the contemporary Orthodox rabbinate. In fact, we would argue that the entirety of the Jewish legal tradition is based upon this assertion. Halakhah is the ongoing conversation and argument over the meaning of the texts of that tradition and their application to our lives. To identify any “code” or banc of poskim as the final arbiters of the law is to cut short this argument and to deny us the opportunity to read and to understand the sources as best we can, according to our own lights.

2. See Leviticus 12:3 (“On the eighth day the flesh of his foreskin shall be circumcised”) and B. Shabbat 132a (“‘On the eighth day’ – even if it is a Shabbat”). Yad, Milah 1:9; Shulchan Arukh Orach Chayim 331:1ff and Yoreh De`ah 266:2.

3. Yad, Milah 1:11.

4. Shulchan Arukh Orach Chayim 331:5 and Yoreh De`ah 266:10.

5. See Rashi ad loc., s.v. kol she’ein imo temei’ah leidah.

6. If the answer to this question is “no,” which is the view attributed to the anonymous (majority) position in the baraita (against that of R. Chama), then the C-section baby would obviously be circumcised as all other babies: on the eighth day, including Shabbat.

7. Among these: R. Yonah Gerondi, cited in Chidushei HaRashba, Shabbat 135b and in R. Nissim Gerondi’s commentary to Alfasi, Shabbat 135b; Chidushei HaRitva, Shabbat 135b.

8. See Nachmanides, Chidushei HaRamban, Shabbat 135b, who takes this position in theory (although retreats from it in practice). He is perhaps the anonymous authority to whom this position is attributed in R. Nissim, Rashba, and Ritva (see preceding note). See as well Sefer HaHashlamah (Provence, early 13th century), Shabbat 135b.

9. This is how R. Nissim (note 6, above) and R. Yosef Karo (Kesef Mishneh, Milah 1:3 and Beit Yosef, Orach Chayim 331 and Yoreh De`ah 266) account for Rambam’s ruling (see note 2, above) as well as the silence of R. Yitzchak Alfasi on this issue in his Halakhot to Shabbat 135. See also R. Asher b. Yechiel, Hilkhot HaRosh, Shabbat 19:6; R. Menchem HaMe’iri, Beit Habechirah, Shabbat 135b; and R. Zerachyah Halevi, Sefer Hama’or to Alfasi, Shabbat 135b.

10. Yad, Milah 1:7; Shulchan Arukh Yoreh De`ah 262:3.

11. Another example of this approach is the compromise over hatafat dam berit, the taking of a drop of blood from a proselyte who was circumcised prior to deciding upon conversion to Judaism. Some authorities say that this ritual is a requirement for conversion, while others say that there is no requirement that we take a drop of blood from a previously-circumcised proselyte. Therefore, we do take the drop of blood, “just in case” the halakhah requires this of a Jew by choice, but we do not recite a berakhah over this procedure, “just in case” it is not required (which would render the blessing a berakhah levatalah). See Shulchan Arukh Yoreh De`ah 268:1 and Siftei Kohen ad loc., n. 1.

12. Nachmanides, Rashba, and R. Nissim (notes 6 and 7, above), among others, make this point.

13. This reflects the general rule that “we incline after the majority” in deciding disputes among Talmudic authorities: M. Eduyot 1:5; B. Berakhot 9a and numerous other places (“yachid verabim halakhah kerabim”); B. Bava Metzi`a 59b (“acharei rabim lehatot” in a dispute over legal interpretation). We should not imagine that this “general” rule is an ireoclad one; “majority rule” does not always decide matters in the Talmud. However, the fact that Rav Assi’s is a minority opinion does serve to weaken its claim to being the “correct” interpretation of the halakhah.

14. Today’s Reform Responsa (TRR), no. 35, pp. 92-94.

15. This reminds us that Jewish law, as a general rule, does not recognize a doctrine of binding precedent (takdim mechayev, in the language of contemporary Israeli jurisprudence). The decisions of past authorities can and do serve as sources of guidance (takdim mancheh) for the present-day posek, and most halakhists show deference to such decisions, particularly if they represent a historical consensus in the scholarship. However, the individual judge is entitled to rule as she or he sees fit on the basis of his or her best interpretation of the sources. See (at length) Mark Washofsky, “Taking Precedent Seriously: On Halakhah as a Rhetorical Practice,” in Walter Jacob and Moshe Zemer, eds., Re-Examining Reform Halakhah (New York: Berghahn Books, 2002), 1-70.

16. Questions and Reform Jewish Answers (NARR), no. 95 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=95&year=narr).

17. For a description of how this principle works in the activity of the Responsa Committee, see the Preface by Rabbi W. Gunther Plaut to Teshuvot for the Nineties (TFN) (New York: CCAR, 1997), p. x: “Our procedure [in writing responsa] was marked by two considerations. First we asked: ‘How might Tradition answer this question?’ Then, after exploring this aspect, we asked: ‘Are there reasons why, as Reform Jews, we cannot agree? If so, can our disagreement be grounded in identifiable Reform policy?’ In this way we placed Reform responsa into the continuum of halakhic literature.” For an example of this principle at work, see our responsum “A Non-Traditional Sukkah,” TFN, no. 5755.4, pp. 91-96 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=4&year=5755).

18. The sources say this explicitly; see M. Nidah 8:1. Indeed, the connection that Rav Assi draws between circumcision on the eighth day and tumat leidah is understandable only if we think that the C-section baby was not “born” in the first place. An example of how the halakhah registers this distinction is that the yotzei dofen, because he was not technically “born” to his father, is not regarded as the firstborn son (bekhor) for purposes of inheritance; see B. Bekhorot 47b on Deuteronomy 21:15 (veyaldu lo); Yad, Nachalot 2:11 and Shulchan Arukh Choshen Mishpat 277:7 (lefi shelo nolad). All of this reminds us, of course, of William Shakespeare, Macbeth, Act V, Scene VIII, lines 12-16.

19. The figure is provided by the US National Institutes of Health, http://www.nlm.nih.gov/medlineplus/ency/article/002911.htm (Accessed May 30, 2008).

20. See Shulchan Arukh Yoreh De`ah 262:2 along with Siftei Kohen ad loc.

21. American Reform Responsa (ARR), nos. 55-56, (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=55&year=arr and http://data.ccarnet.org/cgi-bin/respdisp.pl?file=56&year=arr).

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5768.5

CCAR RESPONSA

5768.5

On Changing One’s Jewish Name

She’elah

In our congregation, each child receives at the time of consecration a certificate with his or her Hebrew name. It is our practice to include only the names of Jewish parents as part of the child’s Hebrew name. We have a situation in which the mother of a child was Jewish at the time of the child’s birth but has since converted out of Judaism. Do we include her name on the certificate? The father and the mother’s parents, who are Jewish, are dedicated to raising the child as a Jew and, in fact, travel a significant distance each week so that the child can receive a religious education. The parents are divorced, and the father has primary custody of the child. (Rabbi Bryna Milkow, Indianapolis, IN)

Teshuvah

Your question raises two issues that are closely related but that deserve separate treatment: the religious nature and significance of one’s Jewish name, and the reasons for which it might be proper to change that name once it has been bestowed upon a person.

1. The Jewish Name. We use this designation rather than “Hebrew name” because the issue is not simply one of language. One’s Jewish name, as we have written previously, “is a covenantal name, a declaration that the one who bears it is a member of the community that stood at Sinai to receive the Torah. In this covenantal name, the names of one’s parents do not testify simply to one’s biological lineage. Rather, they register the fact that it was through these parents that this person was brought into the berit (covenant) between God and Israel.”[1] It is therefore inappropriate to include the name of a Gentile parent as part of a child’s “Hebrew” name, since that parent is not a member of the covenantal community.[2] The child in this case presumably received his or her Jewish name at the ceremony of berit milah or of naming, and that name included the names of both parents – e.g., “ben/bat Ya`akov veRachel” – reflecting the fact that this child is a member of the Jewish people by virtue of the lineage of the father and the mother. Now, however, “Rachel” has begun to practice another religion; she has, that is, become an apostate. May we remove her name from that of her child, even though the child received his or her Jewishness at least in part through the mother?[3]

2. When May One Change A Jewish Name? In a previous teshuvah, this Committee considered a request to include the name of a step-parent, along with those of the two biological parents, in a person’s Jewish name.[4] On the basis of the reasoning set forth in the previous paragraph, we recommended that the request, which involved changing the name that the child received at birth, not be granted. In the course of our discussion, we noted that “our tradition permits one to change his or her Jewish name under certain conditions. For example, the halakhah provides that while an individual is called to the Torah by his Jewish name, he may omit his father’s name (perhaps substituting the name of his paternal grandfather in its place) should the father be an apostate, that is, a convert to another religion. Your biological father, however, has not done anything so grievous. He has not abandoned you or forsaken his duty as a father; indeed, you acknowledge that he has been ‘a regular part of (your) life.’ Even were we to agree, therefore, that at times one’s Jewish name might be altered, this is not one of those times.” We listed some sources for this halakhah in a footnote.[5] We want to discuss them here in some detail, since they suggest a possible response for this and similar cases.

The mother in this instance is an apostate (mumeret/ mumar or meshumedet/meshumad), a Jew who has adopted another religion. The dominant view in the halakhah is that an apostate never ceases (at least technically) to be a Jew, a member of the covenant community. On the other hand, precisely because he or she has chosen to abandon Judaism, the tradition prescribes a number of penalties for the apostate.[6] For example, “(apostates) are not permitted to lead communal worship, to address the congregation, to be counted in the minyan, or to receive synagogue honors such as an aliyah to the Torah.”[7] The omission of the name of an apostate parent from one’s own Jewish name follows closely along these lines. In the Shulchan Arukh,[8] R. Moshe Isserles writes: “One whose father is an apostate is called to the Torah by the name of his father’s father. He is not called by his own name alone, in order to spare him public humiliation.” For example, if Yitzchak has become an apostate, his son Ya`akov is called to the Torah by the name “Ya`akov ben Avraham,” Avraham being Yitzchak’s father. He is not called by the name “Ya`akov” alone, “in order to spare him embarrassment.” Isserles follows the decision of his Ashkenazic predecessor, R. Yisrael Isserlein, the author of the responsa collection Terumat Hadeshen.[9] We find similar reasoning in a responsum of R. David ibn Zimra (16th-century Egypt/Eretz Yisrael), who accepts as valid a get (bill of divorce) in which the husband’s name does not include the name of his father. The omission does not disqualify the get, he declares, because (among other reasons) the father was an apostate, and it is “inappropriate” (ein ra’ui) to mention that fact in an official document.[10] On the other hand, R. Meir Katznellenbogen, a contemporary of Isserles, appears to dissent from this thinking, arguing that the son of an apostate ought to be called to the Torah by the name of his father rather than the name of his grandfather. Yet his ruling, as he notes, deals with adults, individuals who have customarily been called to the Torah by their father’s name. To change their name now would call attention to their family scandal and cause them public shame. He explicitly distinguishes his case from that of a minor who has never been publicly called to the Torah by the name of his (apostate) father and would not be ashamed were the grandfather’s name substituted in its place.[11] To summarize: one is permitted and even encouraged to omit an apostate parent’s name from one’s own Jewish name, unless the very act of changing the name would be the occasion of shame and embarrassment.

Your congregation’s policy strikes us as a reasonable expression of the values that emerge from the halakhic discussion. It is quite arguably “inappropriate” (ein ra’ui) to include in a child’s Jewish – covenantal – name the name of a parent who has decided to abandon the covenant. Changing the child’s name at this early age, moreover, is unlikely to cause the sort of humiliation from which our tradition seeks to spare the individual.

There is, of course, one person who may feel humiliation as a result of this change of name, and that is the child’s mother. For this reason, the rabbi should explain to her that this is not meant as a punitive act and certainly not as an effort to remove her from her child’s life but as a simple acknowledgment that, by her own decision, she no longer considers herself part of the covenant community that has committed itself to “teach these words diligently unto your children” (Deuteronomy 6:7). Although we regret the choice she has made and although we stand ready to welcome her back into the community of Israel should she wish to return, we accept her decision as rational. By that same token, she should accept the consequences her decision rationally entails for her child’s religious upbringing.

Our discussion is relevant as well to the cases which we mention in our earlier teshuvah.[12] Should a parent abandon or abuse a child, the child may be entitled to omit that parent’s name from his or her own Jewish name. Many would consider it inappropriate to include the name of such a parent in the name of the child being called to the Torah. In addition, as we have seen from our examination of the sources, the issue of shame and embarrassment is of central importance in this subject. If the mention of a parent’s name will lead unavoidably to great personal humiliation for the child, then we think our tradition would support the decision to omit that parent’s name from his or her own..

Conclusion. We say all this with a caveat that should be obvious, namely that decisions such as these carry enormous psychological ramifications. The rabbis who deal with these cases will certainly want to counsel with all those involved, both the children and (if possible) the parent(s), to make sure that they understand the potential consequences of those decisions as best they can. The rabbis should remind them that, although one may be entitled to change one’s Jewish name for reasons such as these, that course of action is not obligatory. It is no little or inconsequential step to omit the name of a parent from one’s own Jewish name. The decision to do so should be carefully thought through before it is carried out.

NOTES

1. CCAR Responsa Committee, no. 5760.6, “A Convert’s Hebrew Name,” http://data.ccarnet.org/cgi-bin/respdisp.pl?file=6&year=5760 .

2. CCAR Responsa Committee, no. 5762.2, “A ‘Hebrew Name’ for a Non-Jewish Parent,” http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5762 .

3. This is not the place for an extended discussion of the CCAR’s position on “patrilineal descent,” enunciated in a resolution of the Conference in 1983 (http://data.ccarnet.org/cgi-bin/resodisp.pl?file=mm&year=1983). The term is something of a misnomer, since the point of the resolution is that a child can enjoy a presumption of Jewish status when either biological parent is a Jew, provided that the parent expresses the intention to raise that child as a Jew through the performance of “appropriate and timely public and formal acts of identification with the Jewish faith and people.” For commentary, see Rabbi’s Manual (New York: CCAR, 1988), pp. 225-227, and Teshuvot for the Nineties, no. 5755.17, pp. 251-258, “The Dual Religion Family and Patrilineal Descent” ( http://data.ccarnet.org/cgi-bin/respdisp.pl?file=17&year=5755 ). Our point is simply that, even with this resolution, biology or lineage continues to determine Jewish status in the North American Reform Jewish community. The biological child of two Jewish parents is considered a Jew even in the absence of “appropriate and timely… acts of identification,” and the biological child of one Jewish parent may claim Jewish status, according to the terms set forth by the resolution, without the necessity for conversion. By contrast, the biological child of two non-Jews must undergo the process of giyur (conversion) in order to enter the Jewish community, even if the parents “raised” him or her as a Jew.

4. CCAR Responsa Committee, no. 5765.8, “Including the Name of a Stepfather in One’s Jewish Name,” http://data.ccarnet.org/cgi-bin/respdisp.pl?file=8&year=5765.

5. Ibid., note 11.

6. See R. Solomon B. Freehof, Modern Reform Responsa, no. 30, pp. 169-175; “Status of a ‘Completed Jew’ in the Jewish Community,” Contemporary American Reform Responsa, no. 68, (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=68&year=carr); and “Apostate in the Synagogue,” Teshuvot for the Nineties, no. 5753.13, pp. 81-85 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=13&year=5753).

7. Responsa Committee, “Donations to Synagogue by Messianic Jews,” no. 5761.2 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5761).

8. Shulchan Arukh Orach Chayim 139:3.

9. Resp. Terumat Hadeshen, no. 21. Isserles (the “Rema”) lived in 16th-century Poland, where the teachings of the 15th-century German scholars were given great precedential weight.

10. Resp. Radbaz 1:376.

11. Resp. Maharam Padua, no. 87. He asserts that the author of the Terumat Hadeshen (see note 9) would have accepted this distinction as well. And see Mishnah Berurah to Orach Chayim 139, no. 9: when the adult in question moves to another city, he should omit his apostate father’s name from his own. The change would not attract attention, and no embarrassment would result.

12. See note 4.

If needed, please consult Abbreviations used in CCAR Responsa.

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