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

NYP no. 5760.5

CCAR RESPONSA

5760.5

Conversion When The Spouse Remains a Gentile

She’elah
A woman has asked a congregational rabbi to sponsor and guide her through the conversion process. After a thorough initial interview, the rabbi discovers that her husband, a Roman Catholic, has no intention of converting to Judaism along with her. Although the rabbi judges her character and motives to be sincere in every way, he cannot agree to be her sponsor because her conversion will result in an interfaith marriage. If she were single or married to a Jew, there would be no question of her qualifications as a potential Jew by choice. Should this woman’s love of Judaism and her sincere desire to convert be impacted by the religious identity of her partner? If an interfaith marriage is the result of this conversion, is the sponsoring rabbi held responsible? (Kathy Kahn, UAHC Commission on Outreach)

Teshuvah
Should we accept for conversion a married person whose Gentile spouse does not share the desire to become a Jew? Orthodox rabbis would likely respond in the negative. The conversion of one spouse would create a mixed marriage, which is prohibited under Jewish law.[1] Orthodox halakhists would interpret the potential convert’s desire to remain in what would become a mixed marriage as a lack of commitment on his or her part to “accept the mitzvot” and to live a fully Jewish life; such a lack of commitment is a serious impediment to the acceptance of a conversion and to its subsequent validity.[2] Even those authorities who are generally lenient with regard to accepting proselytes would presumably reject this conversion.[3]

Should we Reform rabbis respond in the same way? On the one hand, we certainly view the phenomenon of mixed marriage as a matter of deep concern, in that it calls into question the Jewishness of home and family life and the very survival of the Jewish people. We teach that “it is a mitzvah for a Jew to marry a Jew so that the sacred heritage of Judaism may be transmitted most effectively from generation to generation.”[4] Our Conference has formally declared “its opposition to participation by its members in any ceremony which solemnizes a mixed marriage.”[5] Even though many of our members will, under certain circumstances, officiate at ceremonies of mixed marriage,[6] they do so not to lend Jewish religious sanction to those unions but rather in the hope that their act might increase the possibility that the couple will create a Jewish life for themselves and for their children. Even though we do our utmost to reach out to religiously-mixed couples and their families and even though we want them to feel fully at home in our synagogues, we do not see mixed marriage as a proper religious choice for a Jew. Given this stance, it might be argued that we should deny this woman the opportunity to convert to Judaism, on the grounds that converting her would create a mixed marriage in this case and give the impression that we condone mixed marriage in general.

Yet there is another side to this argument. In presiding over this conversion, the rabbi and the beit din do not “create” a mixed marriage. The couple are already married to each other in the eyes of the state, and the conversion does nothing to affect that status in either Jewish or civil law. The ritual of conversion (giyur) is emphatically not a wedding or some other “ceremony which solemnizes a mixed marriage.” Nor does the conversion signal that we somehow “condone” mixed marriage. Although a mixed marriage will be the result of the conversion, it is not its intended result, the goal or purposeful outcome of the action of the beit din. The giyur centers not upon the couple–indeed, the husband is not a participant in the ceremony– but upon the individual who chooses Judaism. It concerns itself with her, with the motivations that have led her to Judaism and with her readiness to enter the covenant of God and Israel. Far from condoning mixed marriage, the conversion does not address that subject at all; it does not alter in the least our teaching that “it is a mitzvah for a Jew to marry a Jew.”

The new Jew-by-choice, it is true, will be living in a situation in which she does not fulfill the mitzvah of Jewish marriage. This fact, however, is not a sufficient cause to deny her request to become a Jew. We do not demand of a ger or giyoret that he or she observe “all” the mitzvot (however we understand that term) as a condition for conversion. For that matter, it is far from certain that even the traditional halakhah makes that demand.[7] This person, to be sure, has come to Judaism at a time and from a place in her life that present special challenges to her as she undertakes to “find satisfaction and joy in the fulfillment of Your sacred mitzvot.”[8] Yet each of us, it must be said, travels a unique path to Jewish commitment. All of us struggle to overcome the obstacles that stand in our way to a more complete Jewish life. None of us is perfect (however we understand that term) in his or her Jewish observance, and we do not require perfection from this proselyte. All we ask of her–and this is no little thing–is that she make a sincere and informed decision to adopt the Jewish faith as her exclusive religious expression and that she identify her fate and destiny with that of the people of Israel.[9] Who are we, who do not know this person, to say that she has not made such a commitment? Who are we to say that she is not one of those who, according to our agadic tradition, has come to discover that she, too, stood at Sinai and entered the covenant?[10]

How do we determine whether this person is in fact fully and sincerely prepared to accept the faith of Israel and to join the Jewish people? That decision, our sources teach, is left to the judgment of the local rabbi.[11] Our point is simply that, given that her motives are “sincere in every way,” the fact that this woman’s husband will remain a Gentile does not constitute in and of itself a reason for us to turn her away. The rabbi, we think, is entitled to accept her as a Jew-by-choice.

At the same time, however, it should be abundantly clear that the rabbi is not required to accept her. We say this because, though her marriage does not automatically disqualify her from conversion, it most certainly signals the rabbi to proceed with caution. Again, we emphasize that we do not know this person and that we have no reason to doubt the sincerity of her decision. Yet we cannot overlook the fact that a conversion in a case such as this creates a mixed-religion household, and this raises serious questions as to the capacity of even the most devoted proselyte to construct a Jewish life. Our ceremony for giyur requires that the Jew-by-choice answer “yes” to the following, among other questions: “Do you promise to establish a Jewish home?” and “If you should be blessed with children, do you promise to raise them as Jews?”[12] Even with the best of intentions, a proselyte whose spouse remains a Gentile will face enormous difficulties in achieving these goals. For example, does the spouse identify strongly with his or her own religion? A household in which some other religion is practiced on an equal basis with Judaism cannot be called a “Jewish” home in any plausible sense of that term. If children are born to the couple after one of them converts, does the Gentile spouse support him or her in raising those children exclusively as Jews? Children raised in more than one religious identity do not qualify for Jewish status under the CCAR’s Resolution on Patrilineal Descent.[13] All of this testifies to the fact that Judaism is not simply a matter of personal spirituality, restricted to the worship service. Judaism is a complete and all-encompassing religious way of life; it must be practiced in the home as well as in the synagogue, in the family as well as in the heart. No matter how sincere a potential convert’s personal commitment to the Jewish faith, he or she is not yet ready to become a Jew unless that commitment is realized in the arena of home and family life. It is up to the rabbi to determine that such is the case.

Finally, we must raise the issue of the stability of the marriage and the family relationship. A decision to choose Judaism is a life-transforming event, a matter of ultimate seriousness. From this point forward, the Jew-by-choice is committed to new patterns of worship, of ritual behavior, and of personal consciousness. “The proselyte,” we are taught, “is like a new-born child”[14]; making a significant break with all that is past, he or she from now on seeks religious fulfillment as a member of the community of Israel. What does this transformation do to the spouse who does not join in it? How will it alter the common fabric of the marriage? Does it reflect a separation between the couple, a coming apart? As a matter of pastoral responsibility, the rabbi must inquire as to the psychological sources of this decision and as to its effects upon the marriage and the household.

Conclusion. A person who wishes to become a Jew should not be rejected merely because his or her spouse will remain a Gentile. In dealing with conversion, our primary responsibility is toward the individual proselyte. If the rabbi determines, through careful examination, that the decision to convert is “sincere in every way,” then he or she may be accepted as a Jew-by-choice. On the other hand, the spouse’s decision not to become a Jew may be an indication of serious obstacles to the proselyte’s creation of a Jewish life and of problems in the marriage. The rabbi must be satisfied that these difficulties are not serious before proceeding with giyur. In any event, both the rabbi and the prospective proselyte are well advised to proceed slowly, deliberately, and with all caution. No arbitrary time limit can or should be set. Let them rather take all the time they need to determine whether this decision is the right one, both for the Jew-by-choice and for the Jewish people.

 

 

NOTES

 

  • The prohibition is derived from Deuteronomy 21:13; see BT Kidushin 68b. Another possible source is Deuteronomy 7:3, which ostensibly forbids marriage only with members of the seven Canaanite nations. Maimonides, however, reads the prohibition as covering all Gentiles; see Yad, Isurey Bi’ah 12:1.
  • On the requirement that the ger/giyoret accept the mitzvot (kabalat hamitzvot) see BT Yevamot 47a-b; Yad, Isurei Bi’ah 13:4 (where he speaks of accepting the yoke of the Torah; Shulchan Arukh YD 268:3. That this acceptance must be complete, without any reservations whatsoever, is indicated in BT Bekhorot 30b: a Gentile who comes to accept the Torah except for one precept is not accepted for conversion. Although this statement is not codified in either the Mishneh Torah or the Shulchan Arukh, it does reflect the thrust of contemporary Orthodox halakhic opinion, which suggests that the proselyte’s failure to observe all the commandments is retroactive evidence that the conversion was null and void ab initio. See, for example, R. Avraham Yitzchak Hakohen Kook, Resp. Da`at Kohen, nos. 154-155, and R. Yitzchak Halevy Herzog, Resp. Heikhal Yitzxhak EHE 1:1, nos. 19-21. Yet not all Orthodox halakhists take this position; see at n. 7, below.
  • A case in point is R. Benzion Ouziel, Resp. Mishpetei Ouziel EHE 18. In this teshuvah, he demonstrates his generally lenient approach by accepting conversion for the sake of marriage, even though this is generally considered an improper motivation for conversion, on the grounds that this step is necessary to combat the plague of mixed marriage that afflicts the Jewish community. In the same responsum, however, he addresses a second question: is it permissible to convert a Gentile woman who is already married to a kohen? Here his answer is no: since a kohen is prohibited to marry a proselyte (giyoret), to convert this woman would mean that he would transgress that prohibition. R. Ouziel says this, even though the kohen is already violating the prohibition against intermarriage. Based on his reasoning, it seems clear that he would also rule strictly in our case, in which a conversion would lead to a transgression (intermarriage) in a place where, at the moment, no transgression exists.

 

  • Gates of Mitzvah (New York: CCAR, 1979), 36. And on page 37: Judaism resists mixed marriage because it weakens the fabric of family relationship and the survival potential of the Jewish community, and because it makes it more difficult to establish the mikdash me-at that should be the goal of every Jewish marriage.
  • See Central Conference of American Rabbis Yearbook 83 (1973), 97, for the text of the resolution. An expansive argument on behalf of the resolution is found in American Reform Responsa, no. 149.
  • As indicated in the second paragraph of the resolution cited in note 5.
  • See note 2. Although the preponderance of contemporary Orthodox opinion requires that the proselyte accept “all” the mitzvot–which is tantamount in their eyes to a requirement that he or she become an Orthodox Jew–some authorities hold otherwise. Some understand the requirement of kabalat hamitzvot as the ger/giyoret’s self-imposed obligation to undergo circumcision and/or immersion before a beit din (Chidushei Haramban, Yevamot 46b; R. Meir Posner, Resp. Beit Meir, no. 12). Others see it as a general commitment “to forsake his people and its gods, to take refuge beneath the wings of the Shechinah, to accept the religion of Israel and to enter the Jewish community” (R. Shelomo Lifschitz [18th-19th cent. Poland], Resp. Chemdat Shelomo, YD 29, nos. 22-23). R. Benzion Ouziel sees kabalat hamitzvot primarily as the proselyte’s acceptance of the obligation to keep the mitzvot; this acceptance is valid even if we know in advance that he or she will not observe them (Resp. Mishpetei Ouziel II, YD 1:58). In other words, the giyur “takes” even though the proselyte does not live a thoroughly “Orthodox” life style following the conversion. On all this in detail, see Zvi Zohar and Avraham Sagi, Giyur uzehut yehudit (Jerusalem: Mosad Bialik, 1997), 171ff.

 

  • Rabbi’s Manual (New York: CCAR, 1988), 200, from the “Giyur Service in the Synagogue.”
  • See BT Yevamot 47a, the ger’s declaration of his readiness to accept the vicissitudes of Jewish existence; and see Rashi ad loc., s.v. ve’eini kehda’i.
  • The teaching that all future converts were virtually present at Sinai, a midrash on Deut. 29:14, is found in BT Shabbat 146a.
  • In matters of conversion, “everything is left to the judgment of the court”; R. Yosef Karo, Beit Yosef YD 268, based upon Tosafot Yevamot 24b, s.v. lo.

 

 

  • Rabbi’s Manual, 201.
  • The text of the resolution itself (see Rabbi’s Manual, 226) speaks of the performance of “timely public and formal acts of identification with the Jewish faith and people”; these are “mitzvot leading toward a positive and exclusive Jewish identity” (emphasis added). See also Teshuvot for the Nineties, 5755.17, 251-258; Questions and Reform Jewish Answers, no. 109; and Contemporary American Reform Responsa, no. 61.

 

  • BT Yevamot 22a and parallels.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5760.4

CCAR RESPONSA

5760.4

Gentiles and Jewish Mourning Rites

She’elah
The non-Jewish parent of a non-Jewish member of our synagogue has died. The non-Jewish member wishes to observe shiv`ah and have a service each night at home. Is there any reason why he should not do so? Should we use the “Service for a House of Mourning” provided in Gates of Prayer, or is there something more appropriate? Is it permissible to recite El Malei Rachamim? (Joel Morgovsky, Chair of the Ritual Committee, Monmouth Reform Temple, Tinton Falls, NJ)

Teshuvah
This she’elah asks that we consider the question of boundaries in our religious communities: the boundaries that distinguish between Jews and Gentiles and the boundaries that delineate our religious and communal responsibilities toward the non-Jews in our midst. These lines of definition are difficult to draw to the satisfaction of all, and since every congregation must confront this issue, it is not surprising that different versions of such boundaries exist within our movement. Our Committee is similarly divided as to the best response to the case before us. We are in full agreement, however, that boundaries must be set and that they must reflect a process of careful and thorough Judaic thinking.

The first boundary to be considered is the one that determines membership in our synagogues. We proceed from the presumption that formal membership in our congregations is reserved for persons of the Jewish faith.[1] Again, while each congregation makes its own decisions in these matters, the essential purpose of synagogues is “to promote the enduring and fundamental principles of Judaism and to ensure the continuity of the Jewish people.”[2] It is therefore inappropriate for those who are not Jewish to enjoy formal membership in a Jewish congregation.[3] While our she’elah speaks of a “non-Jewish member” of the congregation, this person is more accurately understood as the spouse of a Jewish member. The non-Jewish spouse of a member should not hold office in the congregation or in any of its auxiliary organizations, nor should he or she vote at congregational or committee meetings. On the other hand, the spouse may attend religious, social, and educational activities and share in the fellowship of the congregation.[4]

This brings us to our second boundary, that which distinguishes Jew from non-Jew. As we have noted, the Gentile spouses in our midst are welcome to take part in the activities we offer, and we most certainly encourage them to attend and to worship at our religious services. It is therefore not surprising that those who do so may find much meaning in our religious life, to the point that they wish to adopt some Jewish observances as their own. The problem with this, to put it plainly, is that these observances are not theirs; they are ours. We do not look upon Jewish rituals and ceremonies simply as instruments for the attainment of spirituality, satisfaction, and comfort. They are rather the means through which we Jews define ourselves as a religious community, rehearse our sacred history, and express our distinct identity. Their meaning for us is primarily a Jewish meaning. It is by keeping these observances (and, at times, by introducing change and innovation into them), that we fully participate in the tradition that we have inherited from Jews in ages past, that binds us to all Jews today and that we seek to pass on to future Jewish generations. It is for this reason that, though the non-Jews in our midst may attend and worship at our religious services, there are clear limits as to their participation in our synagogue’s ritual life. Our rituals, again, are expressions of our Jewish identity, an identity that the non-Jews in our midst, so long as they do not choose to become Jewish, do not share. It is inappropriate for them to participate in our religious life as though they are Jews when in fact they are not Jews.[5]

Our she’elah is a clear and difficult test of these boundaries. This non-Jew, grieving at the death of his parent, has discovered a source of comfort in the observance of dinei avelut, traditional Jewish mourning rituals. He wants to “sit shiv`ah” and asks that we organize for him a service or “minyan” in his home each night of that seven-day mourning period so that he might say Kaddish.[6] We would certainly do so for a Jewish congregant; is it appropriate for us to do so for him? There are some strong arguments that would cause us to say “yes.” This non-Jew violates no ritual prohibition by observing Jewish mourning rites. He is already welcome at our synagogue services, where he may say Kaddish along with the congregation. Moreover, though he may not be a formal member of the synagogue, he is a member of our congregational family. He has shared our “fellowship”; he is in a very real sense one of us. It is our human and pastoral inclination to minister to him in his time of sadness. If the customs of Jewish mourning bring him strength and solace, why would we wish to deny these to him? On the other hand, we cannot forget that dinei avelut are indeed the customs of Jewish mourning, practices that enable Jews to express grief in a way that links them to the life and heritage of our people. For us to arrange a “minyan” for this individual is a well-intentioned act of kindness, but it also confuses the boundary between Jew and non-Jew; it blurs the distinction (central to our existence as a religious community) between being Jewish and doing Jewish.

In considering our question, therefore, we are pulled in different directions by the persuasive power of two sets of concerns, each of which makes legitimate demands upon us. How do we balance these concerns and establish the boundaries appropriate to this case?

  • One member of our Committee recommends that no service be held at the home of this non-Jewish mourner. He should be invited to attend any regularly scheduled synagogue service and to say Kaddish there. El Malei Rachamim may also be recited, but again, only at a synagogue service and not at a “shiv`ah minyan” specially arranged for him. The strength of this approach lies in its insistence on the standards of Jewish propriety: a “shiv`ah minyan” is a Jewish mourning custom, a means of expression rightfully reserved for Jews. Most of us reject this suggestion, however, on the grounds that it pays insufficient attention to the personal, emotional needs of one who is, after all, part of the congregational family. He finds meaning and comfort in the rites of Jewish mourning; we want to find an appropriate way for him to participate in those rites.
  • What is the “appropriate” way for this individual to observe Jewish mourning rites? Some of us would permit the community to arrange a regular “shiv`ah minyan” for him at his home. The liturgy for this service would be the same as used for all such services, whether the Gates of Prayer‘s “Service for a House of Mourning,” as mentioned by our sho’el, or the regular weekday services.[7] Kaddish and El Malei Rachamim may be recited. There is no ritual or halakhic objection to this procedure, so long as the service is led and conducted by Jews-and not by the Gentile mourner–and the Kaddish is recited by a Jew or by the entire company, as is the custom in most Reform communities. In the absence of such objections, some of us see no reason to exclude this member of our family from an observance that will bring him strength and solace.
  • Finally, some of us feel that the “service” at this individual’s home should not be the regular liturgy or the “service for a house of mourning.” Instead, the service might consist of special readings, perhaps including the study of text, followed by Kaddish and El Malei Rachamim. To do otherwise, in this view, would give the impression that this person is participating in our religious life as though he is a Jew. Those of us who take this position believe that the boundary between Jews and non-Jews-a boundary without which we do not exist as a distinct religious community-would be more clearly marked in this way. And all of us, no matter which proposal we favor, believe as one that this boundary must be honored.

 

CCAR Responsa Committee. Mark Washofsky, chair; Walter Jacob; Yoel Kahn; Debra Landsberg; David Lilienthal; Bernard Mehlman; Rachel Mikva; W. Gunther Plaut; Leonard S. Troupp; Moshe Zemer.

 

NOTES

 

  • See Suggested Constitution and By-Laws for Congregations Affiliated with the Union of American Hebrew Congregations, adopted by the Joint Commission on Synagogue Administration of the Union of American Hebrew Congregations and the Central Conference of American Rabbis, April, 1984, Article V, Section 1.

 

  • Suggested Constitution, Preamble.
  • See R. Solomon B. Freehof, Recent Reform Responsa, no. 12, at p. 65: “Jewish congregations consist of Jews by birth or conversion. All who wish to come into Judaism are welcome. No sincere applicant for conversion will be rejected. But we cannot allow the transformation of a Jewish congregation so that it ceases to be the family

NYP no. 5760.3

CCAR RESPONSA COMMITTEE
5760.3
A Defective “Holocaust” Torah Scroll


She’elah.

Our congregation possesses one of the Czech Torah scrolls that were taken by the Nazis and then rescued and cared for by London’s Westminster Synagogue Memorial Trust. There are over one thousand scrolls now on “permanent loan” to synagogues around the world. Ours comes from the town of Kolin, near Prague. Some synagogues have scrolls which are fragmentary or incomplete. Our scroll is a complete sefer torah, but sections of script have flaked away. A sofer stam (i.e., a scribe qualified to write Torah scrolls, t’filin, and m’zuzot) has told us that the parchment will not hold new ink. The scroll, since it cannot be repaired, is technically pasul, disqualified for public reading.

Our congregation has decided to use the scroll for Shabbat Torah readings, in places where the script is perfect or at least very clear. In addition, we have allowed many Benei Mitzvah to read their parashah from the scroll. This enables our youngsters to make a tactile connection between themselves and the vanished community of Kolin. We have taken synagogue and youth trips to Kolin and have prayed at its synagogue, which still stands. The scroll and its history have therefore become a significant part of our congregation’s life.

A question has been raised: is it proper for us to read from this scroll, inasmuch as it has been declared pasul? How shall we answer this question, in light of both our tradition and the value we have found as a congregation in the public reading of the scroll? (Rabbi Mark S. Shapiro, Glenview, Illinois)

 

Teshuvah.

This she’elah poses a conflict between two profoundly important Jewish religious values. On the one hand, the honor due to the sefer torah is a matter of great consequence in our tradition,[1] which as we shall see demands that the formal public reading of the Torah (k’ri’at hatorah) be performed from a sefer torah kasher, a scroll that meets the strict requirements of ritual fitness. On the other hand, the events of the Shoah have left a profound imprint upon the Jewish mind and heart, and the remembrance of that tragedy has taken on for us the character of a religious duty.[2] Many congregations have acquired Torah scrolls that were rescued from the Nazis, and by reading from these scrolls they demonstrate in a concrete and moving way the continuity of the Jewish people and faith. How do we accommodate these two religious values, both of which make powerful claims upon our attention?

The Reading of the Torah from a Ritually Unfit Scroll. In his great code of Jewish law, Maimonides (Rambam) offers a list of twenty defects that render the scroll pasul.[3] The fifteenth item reads: “if the form of one letter should be diminished to the point that it cannot be read at all or so that it resembles another letter, whether this occurred at the original writing or through a perforation, a tear, or fading (of the text).” The Czech Torah scroll described in our she’elah is clearly pasul according to this definition. The proper response would be to repair the scroll and to restore it to kashrut, a ritually acceptable condition.[4] Since this is not possible in our case, tradition prescribes that the scroll be buried or stored away in a genizah.[5] In any event, it may not be used to fulfill the required ritual reading (k’ri’at hatorah). As Maimonides writes, “Should any one of these defects be present, the scroll is reduced to the status of a chumash[6] that is used for the teaching of children; it is not to be read before the congregation.”[7] The reason for this prohibition, according to the Talmud, is that to perform the reading from a chumash–that is, from a scroll that is anything less than a complete sefer torah–is an affront to the dignity of the congregation.[8]

The issue, however, is not as cut-and-dried as it seems. The very same Maimonides is the author of a responsum that rules to the opposite effect.[9] His correspondents ask whether a community that does not possess a sefer torah may perform the public reading from chumashim “and recite the blessings before and after the reading, or should they abstain from reading the Torah altogether?” Similarly, may the blessings be recited over a sefer torah that is ritually defective? Rambam answers without hesitation: mutar l’varekh, it is permitted to recite the blessings over the reading from a sefer torah pasul. This is because we recite the blessings over the reading itself and not over the scroll; thus, “one may recite the blessings whether the reading is performed from a scroll that is kasher, from a scroll that is pasul, or even if one recites without reading from a text at all.”[10] Rambam offers two proofs for this theory. He first refers us to the beginning of the morning service (shacharit), where one recites the blessing asher bachar banu mikol ha`amim— the same blessing recited prior to the reading of the Torah–before reciting passages of Scripture and rabbinic literature.[11] The worshiper says this b’rakhah even though he does not recite the passages from a sefer torah. “Thus, the actual mitzvah is the pronunciation (hagayah) of the words of Torah, and the blessing pertains to that pronunciation.” Second, Rambam cites the talmudic passage, mentioned above, that forbids congregational reading from chumashim.[12] A chumash, he notes, is the supreme example of a defective Torah scroll;[13] still, it is not prohibited because it is defective but rather because to read from it is an affront to “the dignity of the congregation.” This suggests that a defective scroll is not disqualified per se for the congregational reading, but simply that it would be unseemly to use such a scroll for that purpose. The reading itself is therefore not invalid and to recite a blessing over such a scroll is not an instance of b’rakhah levatalah (a misplaced or unnecessary benediction).

This permissive ruling remains very much a minority view. Other leading authorities reject Rambam’s arguments outright.[14] First, they write, Rambam’s permit cuts against the grain of accepted talmudic and halakhic thought, which holds that a defective sefer torah is not to be used for public reading even if no other Torah scroll is available.[15] Second, the benedictions are in fact recited over the scroll and not (as Rambam suggests) over the reading itself. Otherwise, we would be able to fulfill the requirement of k’ri’at hatorah by reciting the Torah portion orally; yet the ancient rabbinic ordinance that established the practice[16] requires that the portion be read from a scroll and not from memory.[17] Third, while the Talmud’s language might support Rambam=s leniency with respect to a chumash–that is, one of the Torah’s five books written correctly on a separate scroll–the disqualification of a Torah scroll whose writing is defective or worn away appears to be absolute.[18]  Indeed, it is arguable that a scroll lacking even one letter is not considered a sefer torah at all,[19] so that the reading from it does not “count” toward the fulfillment of the mitzvah of k’ri’at hatorah. [20]

These are serious objections. Rambam’s ruling seems to contradict everything the tradition has to say on the use of ritually-unfit Torah scrolls. It most certainly contradicts the position of his own Mishneh Torah on the subject. It is therefore not surprising that some subsequent authorities sought to account for this problematic responsum by questioning its validity or authenticity.[21] Still, we think it possible to explain this teshuvah without excising it from the literature of Jewish law. Near the conclusion of the responsum, Rambam declares: “It is proper for every community to possess a Torah scroll that is kasher in all respects, and it is preferable (l’khatchilah)[22] to read from that scroll. If this is not possible, however, let them read in public even from a pasul scroll and recite the blessings, on the basis of the reasoning I have supplied.” In other words, Rambam holds that the preferable, optimal standard of observance demands a kasher scroll, and the ruling in the Mishneh Torah reflects that view.[23] The responsum, meanwhile, conveys Rambam=s understanding of the minimally-acceptable standard of observance: when the optimal standard cannot be met, the reading from a sefer torah pasul suffices to fulfill the mitzvah of k’ri’at hatorah.[24] A community that does not possess a sefer torah kasher may perform the reading from a pasul scroll, presumably so that (in the words of a later authority) “the practice of reading the Torah not be forgotten” there.[25]

The Issue From a Reform Jewish Perspective. We could make a good case to support this congregation’s desire to conduct its Shabbat Torah readings from the Czech scroll. We have seen that Jewish law does not clearly forbid the reading from a pasul scroll; the responsum of Maimonides may be a minority opinion, but it is not necessarily “wrong” on that account.[26] We Reform Jews, at any rate, certainly see nothing wrong with adopting a minority opinion as the basis of our own practice, particularly when that opinion expresses an uplifting and “liberally affirmative” interpretation of Jewish tradition.[27] In the present case, we might say that there is no reason to forbid the use of this scroll. To read from it most certainly does not offend the dignity of the congregation. On the contrary: reading from this sefer torah, which symbolizes the horrific events of the Shoah and our people’s determination to survive all attempts to destroy us, is a deeply meaningful religious experience. Thus, just as Rambam and others were concerned that the practice of Torah reading would not be “forgotten” in small communities, we are motivated to use this pasul scroll by our determination that the Shoah never be forgotten.

Yet this “good” case is insufficient, for it fails to consider the central role that the reading of the Torah plays in our practice. K’ri’at hatorah is more than simply one religious observance out of many. It is the re-enactment of the drama of Sinai, a re-affirmation of the covenant that binds God and Israel. We observe this mitzvah, as do all other Jews, by reading from a Torah scroll. By this we mean that we use a scroll, not a printed book,[28] a scroll, moreover, that is written and constructed according to the requirements set forth in Jewish law for a proper sefer torah. These requirements, it must be stressed, are not mere technicalities, nor are they standards of “Orthodox” practice that we Reform Jews are free to ignore. Rather, they are standards of Jewish practice, the rules that define what a sefer torah is, rules universally observed in all Jewish communities, including our Reform congregations. If Rambam permits the reading from a scroll that does not meet these requirements, he does so as a temporary measure; he is speaking, after all, to a community that has no kasher scroll available. To exalt this stopgap device to the status of a permanent and weekly observance is to say that it makes no difference to us that a Torah scroll is defective rather than kasher. It is to suggest that we are satisfied with an ersatz standard of Jewish practice, that appearances count more than reality, that we are perfectly content to read from a scroll that looks like–but is not–a real sefer torah.[29] This is not the sort of statement that any Jewish community, Reform or otherwise, ought to make;[30] we should consider it an affront to the dignity of our congregation. Let us keep in mind, too, that the Czech synagogue from which this sefer torah originates would never had read it publicly in its ritually unfit state. Like observant Jews everywhere, they would have done the proper thing: either to repair the scroll or to consign it lovingly to a genizah. It is not a little ironic that we should seek to perpetuate the memory of that community by means of an act that they themselves would have rejected as an affront to the dignity of their congregation.

It might be argued, of course, that our duty to remember the Shoah outweighs the need to adhere to the rules and regulations concerning the sefer torah. Yet the reading from this scroll is by no means the only way for us to remember the Shoah in our ritual observance. References to the victims and the events of the Nazi persecutions figure prominently in our liturgy, our liturgical calendar, and in our synagogue architecture and furnishings. We have frequent opportunity, in other words, to remember the Shoah, even if we do not read from this scroll. More than that: we must take great care how we remember the Shoah. In particular, we must not allow that memory to supersede our devotion to the laws, customs, and practices that comprise our Judaism. That the Nazis murdered millions of our brothers and sisters is a fact that has seared its way deeply into our collective consciousness, but it is no reason–indeed, it is precisely the wrong reason–to alter the contours and content of our religious practice. To change, detract from or abandon essential religious observances because of the Shoah, to read from a pasul Torah scroll–something we would otherwise not do–because the Nazis murdered the Jews who once possessed it, is to proclaim that the crimes of Hitler take precedence over the “voice of Sinai,” the proper conduct of Jewish religious life. This, too, is a statement we should not make. It is surely the wrong message to send to our young people on the day when, called to the Torah for the first time, they symbolically accept the responsibilities and commitments of Jewish adults.

We should insist, instead, that our regular weekly, Shabbat, and holiday Torah portions be read from a sefer torah kasher. This is the standard bequeathed to us from Jewish tradition. This was the standard observed by the Czech community from which the scroll in question originated. And it remains the standard which informs Reform Jewish life, the standard to which we educate our children and to which we ought to aspire.

The above does not mean that the congregation should never read from its Czech sefer torah. The point is that we should not allow the Shoah to cause us to detract from or alter the nature of our most important observances; the regular, statutory reading of the Torah, therefore, should not be accomplished from a scroll that is ritually unfit for that purpose merely because that scroll survived the Nazis. On the other hand, it is entirely permissible to add to the body of our observance in response to the Shoah. The institution of Yom Hashoah, a special day of memorial for the victims and the survivors of the death camps, is an obvious example of such a creative endeavor. We therefore may read from the pasul scroll after we have read the regular Torah portion for that day from a kasher scroll. This should be done in such a way as to distinguish it from the reading of the first scroll. The rabbi should announce that this is an additional reading, and the appropriate benedictions should not be recited over the pasul scroll. In this manner, the traditional objections to the reading from a pasul scroll are removed.[31] The congregation can observe the laws and customs that define the mitzvah of the reading of the Torah while at the same time honoring the memory of those who perished in the Shoah.

An overriding concern for all the members of this Committee is that the reading from the pasul scroll should be seen as an exceptional occurrence. The too-frequent use of this scroll would likely upset the careful balance we seek to draw between commemorating the Holocaust and focusing our people’s attention upon the enduring content of Jewish life. Most of us urge that the pasul “Holocaust” scroll be read  only on special occasions that have an obvious connection to the Shoah; the Shabbat closest to Yom Hashoah, Kristallnacht, and the “yahrzeit” (i.e., the date of the destruction) of the community from which the scroll originates are possible examples.[32] On those occasions, some of us feel that the pasul scroll may be used for the regular reading, with no distinctions; thus, the berakhot may be recited over it.[33] Others among us hold that even on these special occasions the pasul scroll should be used only for an “additional” reading (that is, not the statutory portion for the day) and that no berakhot should be recited over it.[34] All of us agree, however, that the pasul scroll should not be read every week.

Conclusion.  A congregation may read from a sefer torah pasul in remembrance of the Shoah. This should be done, however, only on appropriate special occasions, and then in such a way as to emphasize that the reading of the Torah ought to be accomplished from a scroll that is, in all respects, a proper sefer torah.

 

NOTES

  1. The rules concerning the honor due to the sefer torah are summarized in SA YD
  2. The chief expression of this duty is the observance of Yom Hashoah. “It is a mitzvah to remember the six million Jews who were murdered in the Sho-ah by attending special memorial services”; Gates of the Seasons, 102-103. See CCAR Yearbook 87 (1987), 87.
  3. Yad, Sefer Torah 10:1.
  4. K’tubot 19b; Yad, Sefer Torah 7:12; SA YD 279:1.
  5. M’gilah 26a; Yad, Sefer Torah 10:1; SA YD 282:10.
  6. “Chumash” here refers to one of the five books of the Pentateuch, written as a separate scroll; Gitin 60a, and Rashi s.v. bachumashin; Yad, Sefer Torah 7:14 and Kesef Mishneh ad loc.
  7. Yad, Sefer Torah 10:1.
  8. Gitin 60a: ein kor’in bachumashin beveit hakeneset mishum kevod tzibur.
  9. The responsum is found in the traditional collections of Rambam’s teshuvot (Pe’er Hador, 9, and Kovetz Tesuvot Harambam, no. 15) as well as in both of the two twentieth-century critical editions: Teshuvot Harambam, ed. A Freimann (Jerusalem: Mekitzei Nirdamim, 1934), no. 43; and Teshuvot Harambam, ed. Y. Blau, vol. 2 (Jerusalem: Mekitzei Nirdamim, 1960), no. 294.
  10. The blessings surrounding the Torah reading, Rambam writes, differ from those we recite over such mitzvot as sukah and lulav. In those instances, should the object itself be pasul we would not recite the appropriate b’rakhah, because “the mitzvah is the taking of a lulav or the dwelling in a sukah, and the blessing is recited over those objects. Should they be ritually unfit [that is, should they not meet the requirements for a valid lulav or sukah], one does not perform the mitzvah (when using them).” The blessing would therefore be an improper one, a b’rakhah l’vatalah. By contrast, the blessings surrounding the Torah reading are said over the reading and not over the Torah scroll itself.
  11. See SA OC 47:5, which lists the three berakhot recited during the beginning of the morning service (birkhot hashachar) over the study of Torah. Our own prayer book omits the third of these blessings, asher bachar banu; see Gates of Prayer, p. 52.
  12. Gitin 60a.
  13. Rambam’s reason for saying this is not altogether clear. Presumably, he means that a chumash, unlike other “defective” scrolls, does not even resemble a proper sefer torah.
  14. This is especially true of R. Shelomo b. Adret (Rashba; Barcelona, d. 1310), whose ruling is not found in the extant collection of his responsa but is cited at length in two early-14th century works–Orchot Chayim, Sefer Torah, no. 5 and Kol Bo, p. 13b-c–and referenced by the fifteenth-century R. Yosef Kolon (Resp. Maharik, no. 69) and R. Shelomo b. Shimeon Duran (Resp. Rashbash, no. 11) and the sixteenth-century R. Yosef Karo (Beit Yosef, OC 143).
  15. This, says Rashba (see note 14), is derived by the Talmud=s language concerning the defective scroll: ein korin bo, “it is not to be read (before the congregation)”; this, he argues, implies an absolute disqualification and not, as Rambam thinks, a provisional disqualification to be waived when no other scroll is available. See also Rashba 1:487. Moreover, the same language–ein korin bo or al yikra bo–is used in tractate Sof’rim with respect to a sefer pasul, and the disqualification there appears to be absolute. See, e.g., Sof’rim 3:7 and 9.
  16. Rabbinic tradition holds that the formal, public Torah reading was established by Moses and Ezra through a series of takanot, or legislative enactments. See Bava Kama 82a and Yad, T’filah 11:1.
  17. This argument is less than airtight. Maimonides could respond that, if the reading is supposed to be carried out from a scroll mishum k’vod tzibur, “due to the dignity of the congregation,” this does not imply that a reading done without the scroll is not valid b’di`avad, or “after the fact.” Yet Rashba makes the point that if the Rabbis ordain that blessings be recited over the performance of a mitzvah, they should be said only when that mitzvah is carried out in its intended form; thus, the berakhot should not be said over anything but a proper (kasher) Torah scroll.
  18. See Gitin 60a: while chumashim are not read in the synagogue because of “the dignity of the congregation” (implying that the congregation may waive its “dignity” and allow the reading to take place), a defective scroll is simply “not read” (ein korin bo), presumably even if the reading would not offend the congregation’s dignity.
  19. See Bava Batra 15a, on Deut. 31:26, and R. Yosef Karo, Kesef Mishneh to Yad, T’filin 1:2.
  20. Thus, according to “most” opinions (da`at rov haposkim; Mishnah Berurah 143, no. 13), when an error is discovered in a sefer torah during the congregational reading, the reading must be repeated from a kasher scroll from the beginning of that day’s appointed section. See R. Asher b. Yechiel, Resp. Harosh 3:8; and Migdal Oz to Yad, T’filin 1:2, in the name of R. Meir Abulafia, R. Avraham b. David of Posquierres, Ramban, and Rashba. This rule is not universally accepted; see below, note 26.
  21. Thus Rashba (cited at note 14) proposes that the responsum represents the opinion of Maimonides “in his youth,” while the Mishneh Torah expresses his more considered and mature viewpoint. Rashbash (cited at note 13) raises the possibility that Rambam is not the actual author of the responsum. He writes that, inasmuch as we cannot be certain that the teshuvah was in face written by Rambam (“is his signature upon it?”), it is wiser to follow the opinion of the Mishneh Torah, of which his authorship is not doubted.
  22. The word l’khatchilah, a technical term of Jewish law, signifies the optimal standard of observance, the practice that ought to be followed if one has a choice. Yet if an individual or community cannot adhere to that standard, they can still fulfill the requirements of the mitzvah provided that they have met the minimally-acceptable standard of observance (b’di`avad).
  23. That is, although a congregation’s “honor” dictates that it should not read from a ritually unfit Torah scroll, the reading therefrom is not invalid; otherwise, it would be unacceptable even b’di`avad, as a “minimally-acceptable” standard. The wording of Yad, Sefer Torah 10:1 suggests that Rambam, unlike Rashba, draws no distinction between the chumash and the defective scroll on this point; see at note 18.
  24. This line of thought is indicated by none other than Rashba in a responsum (1:805). The Talmud (BT Gitin 60a) declares that we do not read from chumashim on the grounds that to do so affronts the dignity of the congregation. This implies that, as a matter of technical law, it is permitted to perform the public reading from a chumash (min hadin mutar), though by all means a proper sefer torah ought to be used. See also R. Yoel Sirkes (17th-century Poland), HaBaCh Hachadashot, no. 42.
  25. See Magen Avraham to SA OC 143, no. 2, and see note 31, below.
  26. In addition, Rambam’s “rejected” teshuvah retains a great deal of influence over Jewish ritual practice. See SA OC 143:4 and YD 279:2: if an error is found in the text of a Sefer Torah during the reading, another scroll is brought from the ark and the reading continues from the place in the text where the error was found. In other words, that part of the reading already performed from the pasul scroll “counts” toward the fulfillment of the mitzvah. This ruling is, on the surface, a curious one: if a Torah scroll is ritually unfit, it stands to reason that none of its text can be utilized for the performance of the mitzvah. That, indeed, is the opinion of “most” authorities (see note 19). R. Yosef Karo, who notes that this custom originated with his colleague R. Ya`akov Berav of Safed, justifies it on the basis of Rambam’s teshuvah: “even though we do not follow Rambam’s ruling, we rely upon it after the fact in order to accept the reading” that was already performed from the Sefer Torah pasul; BY YD
  27. On the tendency of Reform responsa to seek the “liberally affirmative” answer, see R. Solomon B. Freehof, Reform Responsa (Cincinnati: Hebrew Union College Press, 1960), 23. For a more recent, systematic account of the principles of liberal halakhah, see R. Moshe Zemer, Evolving Halakhah (Woodstock, VT: Jewish Lights Publishing, 1999).
  28. This is not to say that we are forbidden to read the Torah portion from a printed chumash during our services. Sometimes, there is no alternative to doing so; see note 31, below. But the act of reading from a printed chumash, however valuable in and of itself, does not meet the definition of the act of k’ri’at hatorah. That mitzvah, a ritual observance that meets its own particular requirements, is accomplished only through the reading from a sefer torah.
  29. See at note 19, above.
  30. On the use of “substitutes” for ritual observance, see our responsum “Non-Traditional Sukkah,” Teshuvot for the Nineties, 5755.4, 91-96.
  31. It is not forbidden to read in public from a non-kasher Torah scroll; the point is that such a reading does not fulfill the mitzvah of k’ri’at hatorah. The blessings, which pertain to that mitzvah, are therefore inappropriate. It follows that to read from the scroll without pronouncing the blessings is permitted, so long as we do not think we are fulfilling the mitzvah See Isserles, OC 143:2 and Magen Avraham ad loc.: a community that does not possess a sefer torah kasher may read from a printed chumash provided that the blessings are not recited. And see P’ri M’gadim to OC 143, Eshel Avraham no. 2: “in a community too small to gather a minyan, perhaps it is proper to read from the sefer torah without the accompanying b’rakhot, so that the practice of k’ri’at hatorah not be forgotten.”
  32. There are others. Our colleague Rabbi David Lilienthal, of the Liberal Jewish congregation in Amsterdam, reports that his community reads from its own pasul “Shoah” Torah scroll on two occasions during the year: Shabbat Zakhor (Deut. 25:17-19, “Remember what Amalek did to you…”) and Shabbat Shuvah (Deut. 32, parashat Ha’azinu).
  33. Here following the theory of Rambam’s responsum: the reading from a sefer torah pasul does fulfill the mitzvah of k’ri’at hatorah, and the reading from it on these special occasions is not to be considered an affront to the congregation=s “honor.”
  34. On the grounds that even on these special occasions the congregation should respond to the Shoah by observing this mitzvah in the form that we generally think proper. The pasul scroll though used for the “additional” reading, will still leave a moving impression upon the congregation.

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5760.2

CCAR RESPONSA

5760.2

Presumption of Jewish Identity

She’elah

A woman presents herself to a rabbi and states she wants to join the congregation. The woman is unknown to the rabbi, the congregation and the Jewish community. The rabbi inquires if she is Jewish and she states that she is. Does the rabbi accept her at her word, or is the rabbi obliged to conduct further inquiry as to her Jewish status? If further inquiry is required, what threshold of proof need be met? (Rabbi Joshua Aaronson, Perth, Australia)

Teshuvah

Jewish law, in general, determines the status of persons or things in either one of two ways. The first is edut berurah, or clear proof, whether in the form of eyewitness testimony[1] or other evidence.[2] The second is presumption, which itself can take two forms: chazakah, or “presumption” proper; and rov, the “majority” principle. The rules governing these processes are much too complex and detailed to summarize here.[3] Suffice it to say that Jewish law relies upon them as grounds for action in the absence of clear proof. There are many situations for which clear proof or documentary evidence does not exist, yet the court can determine the legal status of the things or persons at issue by means of an appraisal (umdana) of what was the case prior to the raising of the issue or of what is likely to be the case according to the usual behavior of persons or things. Indeed, the most fateful sort of legal decisions-i.e., those dealing with capital offenses-can proceed from judgments based upon chazakah and rov.[4]

Presumption has always played a crucial role in determining an individual’s Jewish status. We customarily do not ask newcomers to supply proof of their Jewishness before allowing them to join our communities.[5] This custom is based upon the rule in Jewish law that when a person we do not know comes to us and claims “I am a Jew,” we accept that claim on his or her word alone.[6] This rule is explained in several ways. According to some authorities, the claim “I am a Jew” needs no proof because “the majority (rov) of those who come before us are Jews”; therefore, we accept this person as a member of that majority.[7] Other commentators say that we accept the claim “I am a Jew” because we presume that a person would not lie about such an easily-discoverable fact.[8] In either event, the Jewish status of this person is established not by means of hard evidence but by the community’s presumption that the individual is telling the truth. For this reason, it is common practice to accept as Jewish those who come to our communities and present themselves as Jews.[9]

 

How does this halakhic standard apply to the case before us? In theory, the rabbi could follow one of the above presumptions and accept this woman as a Jew on the strength of her claim alone. Yet the matter is hardly so simple. A presumption, as we have noted, is a determination of the status of a person or thing based upon a judgment as to what the status is likely to be; it operates in situations where we lack firm evidence to prove what that situation actually is. We think that there is serious doubt that these presumptions concerning Jewish status, which were formulated in an era when it was quite rare for non-Jews to seek to join the Jewish people, can be applied literally to the situation in our communities. To put this bluntly, it is no longer as “likely” as it once was that those who come before us are in fact Jews. This is not to say that these persons are necessarily of malicious intent or that they knowingly lie about their Jewishness, but rather that the once sharply-drawn definitions of Jewish identity are much less clear to many people today. An individual becomes a member of the Jewish people either through birth or through conversion.[10] Yet in our liberal society, where religion is often perceived as a strictly personal matter and where changing one’s religious affiliation has become increasingly commonplace, many people take the position that “I am what I claim to be.” In this view, religious identity is more truly established “internally,” by one’s heartfelt association with a particular community, than through adherence to “external,” formal standards of membership. Many of us have dealt with individuals who regard themselves as Jewish but whose Jewish identity stems neither from birth nor conversion but from an emotional bond, a feeling of connection with us. Such persons might be encouraged to consider conversion to Judaism, but until they complete the conversion process they are not Jews. In addition, there are individuals who claim to be Jewish out of genuine misunderstanding of the rules that define Jewishness.[11] Under current conditions, to apply the old presumptions without modification-to say, in effect, that anyone who claims to be Jewish must be Jewish-is quite arguably tantamount to ignoring reality.

The foregoing remarks are not to suggest that these problems have reached crisis proportions. In the vast majority of cases, we are satisfied with an individual’s statement that “I am a Jew.” Indeed, it would be tragic were rabbis and congregations as a rule to greet newcomers with suspicion and probing questions. This would violate both our common sense of decency and the mitzvah of hospitality to strangers (hakhnasat orechim).[12] Yet there will be times when the rabbi, on reasonable grounds, will not be satisfied with the individual’s claim of Jewishness. We will not attempt to define those “reasonable grounds”; that is a matter best left to the responsible and educated judgment of the rabbi, acting in his or her capacity as mara de’atra (local authority). When the rabbi feels that such grounds exist, he or she may inquire into the individual’s Jewish status. Ideally, the inquiry will be restricted to questions of the “getting-to-know-you” variety. They should be unobtrusive and respectful of the person’s basic human dignity; our tradition, as we know, prohibits us from causing another to suffer unnecessary shame and embarrassment.[13] Yet if the rabbi, mindful of these requirements, feels it necessary to ask for proof of the individual’s Jewish status, he or she may do so. To make such determinations, however sensitive the subject matter, is quite simply part of the rabbi’s job. And we trust that our rabbis will perform that task with diligence and with sensitivity.

CCAR Responsa Committee

. Mark Washofsky, chair; Walter Jacob; Yoel H. Kahn; Debra Landsberg; David Lilienthal; Rachel S. Mikva; W. Gunther Plaut; Samuel Stahl; Leonard B. Troupp; Moshe Zemer.

 

 

NOTES

 

  • Deuteronomy 19:16; Yad, Edut 5:1ff.
  • The classic example is documentary evidence (shetarot). Witnesses are ordinarily required to testify orally in the presence of the beit din (BT Gitin 71a on Deut. 19:16 and Yad, Edut 3:4, although Rabbenu Tam disagrees; see Tosafot, Yevamot 31b, s.v. dechazu and Hagahot Maimoniot, Edut, ch. 3, no. 2). Still, a document such as a promissory note or a deed of sale is acceptable as evidence in legal proceeding on the grounds that “when witnesses sign a document, it is as though their testimony has been investigated by the court” (BT Ketubot 18b).
  • For example, the articles on chazakah in the Encyclopedia Talmudit extend from vol. 13, pp. 553-760 and then to vol. 14, pp. 1-423.
  • That is, we make judgments concerning blood and marital relationships based upon chazakah (BT Kidushin 80a and Yad, Isurei Bi’ah 1:20) and rov (BT Chulin 11a-b). These judgments, in turn, determine the application of the prohibitions against incest and adultery, both of which are punishable under biblical law with death.
  • In the words of the 13th-century R. Moshe of Coucy (Sefer Mitzvot Gadol, negative commandment no.116): “It is common practice (ma`asim bekhol yom) that, when visitors come to our communities, we do not investigate their origins. (Rather), we drink wine with them and eat the meat that they have slaughtered” (two things that these Jews would never have done had they suspected these visitors of being Gentiles).
  • This rule is based upon the Talmudic discussion of the person who comes to us and claims “I am a convert to Judaism” (BT Yevamot 46b-47a). Halakhah requires this person to supply proof of conversion only if we know in fact that he or she was originally a non-Jew. If, however, we do not know this person’s origin, we accept the claim of conversion because he or she could have said simply “I am a Jew,” a claim for which no proof is demanded. The legal principle here is migo: we may accept a claim as true on the grounds that this individual could have made a more advantageous claim. Since we would have accepted on face value the claim that “I am a Jew,” there is no reason for us to doubt the veracity of the claim “I am a convert,” which entails that he or she was born a Gentile. Maimonides (Yad, Isurei Bi’ah 13:10) calls this an example of the rule hapeh she’asar hu hapeh she-hitir: a person who is the sole source of information that is disadvantageous to him- or herself (“I was a non-Jew”) is believed when he or she gives testimony that reverses the disadvantage (“…but I have converted to Judaism”).
  • Rabbenu Tam, Tosafot, Yevamot 47a, s.v. bemuchzak lekha (and see below, note 8); Hilkhot HaRosh, Yevamot 4:34. See also BT Pesachim 3b and Tosafot, s.v. ve’ana.
  • R. Moshe ben Nachman (Ramban), R. Shelomo b. Adret (Rashba), and R. Yom Tov ibn Ishbili (Ritva) in their chidushim to Yevamot 47a; R. Nissim Gerondi (Ran) in his chidushim to Pesachim 3b; and Rabbenu Tam in Sefer Hayashar (ed. Schlesinger, 1959), ch. 336.
  • Beit Yosef

and Bayit Chadash to Tur, Yore De`ah 268, fol. 215a; Shulchan Arukh, Yore De`ah 268:10 and Siftei Kohen, no. 21.

  • This statement remains true even in North America, where the Reform movement has modified the traditional standards of Jewish status with the CCAR’s Resolution on Patrilineal Descent. Under that resolution, a child of one Jewish parent (either father or mother) may qualify as a Jew by performing “timely public and formal acts of identification with the Jewish faith and people.” Yet this possibility is open to the child because he or she was born to a Jewish parent. Conversely, the child of two Jewish parents remains Jewish under our definition even in the absence of such “timely and formal acts.” Thus, Jewishness for us continues to be established on the basis of birth or conversion. For details, see Rabbi’s Manual (New York: CCAR, 1987), 225-227.
  • For example, the determination of Jewish identity under the CCAR’s Resolution on Patrilineal Descent (see note 9) can be a source of uncertainty. Just what the resolution means by “timely public and formal acts of identification with the Jewish people” is not yet a matter of precise definition, and until that question is clarified we can expect confusion as to “who is a Jew?” according to the terms of the resolution.
  • See BT Shabbat 127a-b, where hospitality is listed among the things “whose fruits one consumes in this world and whose principal remains available for one in the world-to-come,” an example of gemilut chasadim (acts of lovingkindness). Maimonides classifies such acts under the rubric of “love your neighbor as yourself” (Lev. 19:18; Yad, Avel 14:1).
  • BT

Arakhin 16b, based upon a midrash of the concluding words of Lev. 19:17, lo tisa alav chet, “do not bear a sin on his account”; Yad, De`ot 6:8.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5761.1

CCAR RESPONSA

5761.1

Copyright and the Internet

She’elah

According to Jewish law, is it right to download files (music, games, etc.) from the Internet without the creator’s consent or monetary compensation? (Rabbi Eric Gurvis and the ninth grade religious school class, Temple Shalom, Newton, Massachusetts)

Teshuvah

The easiest way to answer this question is to refer it to the civil authorities. Jewish law contains the principle of dina demalkhuta dina,[1] which recognizes the validity of the law of the state or the general government. This law is valid and binding upon us because the citizens of the commonwealth have agreed in advance to abide by the laws that pertain to the government’s accepted legislative power.[2] Our question is one of property rights, specifically the issue of ownership of what we call “intellectual property,” and this clearly falls into the category of those matters that the state may properly regulate through its legal system. Jewish law would recognize as valid the decision reached on this question by the legal system under which we live, whatever that decision might be.

Yet this “easy”answer does not really address the question we have been asked. Our sho’el wants to know how Jewish law would resolve the issue, were it not a matter to be adjudicated by the civil courts. That is, according to the tradition of legal and religious thought known as the halakhah, what is our ethical duty with respect to materials we download from the Internet? Are we permitted to access these materials freely? Or do we violate the rights of their creators and owners if we download them without their permission or do not pay them compensation? If we were dealing with a question of tangible property (real estate or chattel), our response would be obvious. Taking or borrowing the property of another person without that person’s consent is tantamount to theft. But we are dealing instead with the ownership of intellectual property, a set of rights called “copyright.” Does Jewish law recognize copyright? And if so, does copyright protection extend to material available over the Internet?

“Copyright”[3] as a legal principle does not enter the halakhic literature, or the law in general, until the invention of printing. Prior to that time, there were no mechanical means to make multiple copies of written texts. The advent of the printing press led to the creation of a new industry in which many workers were employed and in which considerable money was spent in the production of books and other printed materials. Since it was now relatively easy to make copies of these texts and to distribute them on a mass scale, authors and publishers sought to protect their investments from encroachment by competitors.[4]

The first case we encounter in Jewish law concerns the printing of an edition of the Mishneh Torah, the law code of Maimonides, by R. Meir of Padua and a Gentile printer in Venice in 1550. A competitor thereupon published the same work, pricing it somewhat lower than the first edition. R. Moshe Isserles, one of the authors of the Shulchan Arukh, issued a ban against the competitor’s edition, on the grounds that its publication wrongfully injured the livelihood of R. Meir and the first printer.[5] This ruling was controversial, since the relevant Talmudic passage seems to allow free economic competition.[6] Isserles apparently reads the passage to say that, while competition is permitted, the competitor may not destroy the livelihood of the established business.[7] The printer has a copyright upon the book, therefore, because free competition in this case would drive him from the market and deprive him of any chance to recoup his investment. Some later authorities were reluctant to accept this view. The Torah, they argued, belongs to all of us, and the study of the Torah is a central religious duty. How can anyone claim property rights over sacred texts, literature produced in fulfillment of a mitzvah?[8] This objection, however, was countered by the very practical concern that, without some sort of protection allowing him to realize a profit, no printer would undertake the financial risks necessary to publish works of Torah learning. Our devotion to the mitzvah of Torah study therefore requires that we recognize the property rights of the publishers of sacred literature.[9] In addition, those who expressed doubts about copyright did so with respect to printers who published works written by others. These authorities were much more willing to recognize that the author of a work of Torah scholarship had a right to profit from his own book.[10]

Jewish law, in other words, accepts that the author of a text enjoys a copyright over his or her work, as a matter either of principle (the creator of a text is its rightful owner)[11] or of pragmatism (without copyright protection, few would venture to publish such works). If this is true of sacred literature, where one could object that there should be no such thing as a copyright over words of Torah, it is certainly true of other written works, where that objection does not apply. And if the authors of written texts deserve copyright protection, there is no reason why we should not extend that protection to other forms of intellectual property, which like written texts are created by authors who invest time and resources into their creation in the hope of earning a livelihood and of achieving a return on their investment. These works should not be copied or reproduced without the consent of their authors, the authors’ legal representatives, or of those to whom the authors have transferred legal title.[12]

Does the new technology change these conclusions in any substantial way? The development of the Internet and the World Wide Web has dramatically transformed the publishing marketplace during the past decade, making it possible to reproduce literary and artistic materials and to distribute them instantaneously to an audience that circles the globe. Some contend that this new technology has radically altered the notion of copyright as well. Since it is so easy to download files and to share texts, the argument runs, the authors of these materials cannot reasonably expect to control their sale and distribution. Some go further, claiming that in this new “information age,” where the rapid sharing of data has become the norm, it is wrong as well as impractical to try to impede the free distribution of knowledge and information.[13]

It seems to us, however, that while information technology has become more sophisticated, the ethical issues that led to the creation of copyright laws remain the same. If it is wrong to print a book or to copy a painting without obtaining the permission of its creator, it is just as wrong to download literary and artistic creations as files without the consent of those who authored them or who own the rights to them. It is true that the “Internet age” confronts us with fundamentally new realities. It may also be true that existing copyright laws are insufficient to respond to these new realities. But it is certainly true that we continue to shoulder a duty, under Jewish tradition as well as under the law of the state, to honor, protect and safeguard the rights of authors and publishers to the works they create.

It is therefore wrong, from the standpoint of Jewish law, to download files from the Internet unless one has obtained permission from the authors of those files to do so.

 

 

NOTES

 

  • This principle, enunciated by the amora Shmuel, is found four times in the Babylonian Talmud (BT Nedarim 28a; Gitin 10b; Bava Kama 113a-b; Bava Batra 54b-55a). A similar concept is found as well in tanaitic literature, although it is given no explicit legal formulation there; see M. Gitin 1:5.
  • The agreement is called a stipulation (tena’i), in effect a contract or compact into which the members of the community have entered. Note the language “accepted legislative power”: the principle of dina demalkhuta dina does not entail that all the acts of the general government are accepted by Jewish law as valid and binding. On the theory and the limits of dina demalkhuta dina, see our responsum no. 5757.1.
  • We follow the definition of “copyright” as set forth in Corpus Juris Secundum (St. Paul: West Publishing Co., 1990) 18:2 (94): the right of literary property as recognized and sanctioned by positive law; the exclusive right of printing or otherwise multiplying copies of an intellectual production and of publishing and vending the same; and the right of preventing all others from doing so.
  • For the historical background see J.A.L. Sterling, World Copyright Law (London: Sweet and Maxwell, 1998), 7 ff. The granting of publication monopolies was a well-established practice in the printing center of Venice for nearly one hundred years prior to the case involving the Mishneh Torah.
  • Responsa Rema (R. Moshe Isserles)

, no. 10.

  • See BT Bava Batra 21b: may a competitor from the immediate community or from outside the community open a similar business there, or can the existing artisan or merchant prevent him from doing so? Most early authorities rule that the competitor must be allowed to do business, inasmuch as a similar business already exists within the community (Yad, Shekhenim 6:8; Alfasi to Bava Batra 21b; Hilkhot Harosh, Bava Batra 2:12). On the other hand, R. Mordekhai b. Hillel (Sefer Hamordekhai, Bava Batra, ch. 516) writes that the competitor may be prevented from setting up his business in a spot where all the potential customers will pass by his establishment without seeing that of the existing merchant or artisan, thereby depriving the latter of business.
  • Isserles uses the term bari hezeka (“the damage is clear and palpable”; see also his Darkhei Moshe to Tur, Choshen Mishpat 155, no. 4). R. Moshe Sofer (18th-19th cent. Hungary) explains Isserles’ point as follows: the existing business has no right to prevent the entry of a competitor when the competition will result in a lessening of the existing business’s income. But if the competition would destroy the existing business, the latter has the right to prevent the entry of the competitor (Resp. Chatam Sofer, Choshen Mishpat, no. 79).
  • As one posek put it: if Moses himself taught Torah without receiving payment, how can we demand the right to profit from publishing sacred texts (see BT Nedarim 30a, on Deut. 4:5)? R. Yitzchak Schmelkes (19th-cent. Galicia), Resp. Beit Yitzchak, Yoreh De`ah 2:75.
  • Resp. Chatam Sofer

, Choshen Mishpat, no. 57.

  • Resp. Beit Yitzchak

(see note 6); Resp. Sho’el Umeshiv (R. Shaul Natanson, 19th-cent. Galicia), 1:44; and Resp. Meshiv Davar (R. Naftali Zvi Yehudah Berlin, 19th-cent. Lithuania), 1:24.

  • This argument is put forth by R. Berlin in Resp. Meshiv Davar, loc. cit. See also R. Shimeon Shkop, Chidushey R. Shimeon Yehudah Hakohen, Bava Kama, no. 1: “it is an accepted principle in Torah law that one who creates a thing is the owner of all rights to and over it.”
  • This statement is a simplification of a complex legal and ethical situation. The law of the state generally allows an individual to make limited “fair use” of copyrighted material for certain specific purposes. There is no requirement to obtain the author’s consent to use the materials for these purposes. The problem emerges when one reproduces literary and artistic materials for purposes other than “fair use.”
  • For a look at some of these arguments, see Ron Coleman, “Copycats on the Superhighway,” American Bar Association Journal 81 (July, 1995), 68-70.

 

If needed, please consult Abbreviations used in CCAR Responsa.

NYP no. 5761.2

CCAR RESPONSA

5761.2

Donations to Synagogue by Messianic Jews

She’elah

Our synagogue suffered a tragic fire. The community, especially the non-Jewish community, has been supportive on many levels. Local churches, some of them evangelical, have contributed to our rebuilding effort. Recently, we received a significant check from the local Messianic Jewish congregation. Do we return it, or do we accept it with gratitude in the same way we have accepted funds from other Christian groups? (Rabbi Daniel Weiner, Harrisburg, PA)

Teshuvah

“Messianic Jews,” along with the Jewish members of such similar groups as “Jews for Jesus,”are apostates (mumarim), Jews who have abandoned Judaism for other religions.1 The religion of the “Messianic Jews” is not a version of Judaism but of fundamentalist Christianity, and it does not cease to be Christian in essence and character merely because it is draped in the Hebrew language and Jewish religious symbolism. The Responsa Committee, basing itself upon Jewish tradition and an evaluation of the challenges that confront our community today, has long advocated that we approach apostates with a policy of strict separation tempered with openness.2 Apostates “should not be accorded membership in the congregation or treated in any way which makes them appear as if they were affiliated with the Jewish community.” They 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. This separation is necessary in order to make two points: first, that it is inappropriate for those who have renounced Judaism to participate in our religious and social life as though they remain Jews in good standing; and second, that their decision in no way constitutes a legitimate Jewish religious choice.3 At the same time, “we can not, and should not, exclude these individuals from attendance at services, classes, or any other activity of the community, for we always hold the hope that they will return to Judaism and disassociate themselves from Christianity.”4

How does this policy apply to the issue of gifts by apostates to our synagogues? Jewish law deals in some detail with the question of donations to our religious institutions by those outside of our community. Gentiles, for example, were permitted to donate certain sacrifices to the ancient Temple;5 accordingly, since many of the rules relating to the synagogue are derived from those that governed the Temple,6 the Rabbis determined that it is permissible to accept donations from Gentiles to our synagogues today.7 By contrast, the apostate (mumar) who rejects Judaism was not permitted to donate sacrifices to the Temple,8 for by his actions he had separated himself from the community of Israel.9 R. Moshe Isserles, one of the authors of the Shulchan Arukh, draws the analogy from Temple to synagogue: just as the mumarwas not permitted to donate sacrifices, so we do not accept synagogue donations from apostates.10 This comparison, however, is rejected by Isserles

 

 

’ sixteenth-century contemporary R. Moshe Trani, who declares that the prohibition against accepting donations from the mumar applied only to sacrifices and other appurtenances of the Temple and that it is therefore permissible for a synagogue to accept a gift from an apostate.10 Subsequent halachic writers do not clearly resolve this dispute.11 It is not certain, therefore, that the halachah would prohibit the synagogue from receiving this gift.

 

 

On the other hand, there is another perspective from which we might consider this question. That perspective is g’neivat daat, the prohibition against deceptive speech and behavior.12 “Messianic Judaism” in its various guises is based upon just such a deception. It promotes the false impression that Christianity is a legitimate form of Judaism; it preaches that a Jew who adopts that religion does not abandon Judaism but rather becomes a “fulfilled” or “completed” Jew through the acceptance of Jesus as Messiah and personal savior. This false message is communicated through the very name of the group as well as through a series of deceptive practices. These congregations conduct their worship services in something of a Jewish style and structure; they celebrate the Jewish holy days; their spiritual leaders are called “rabbis,” and so forth. Such practices make the “Messianic” religion “look Jewish,” thereby blurring the very real distinction between Judaism—in the various forms of religious expression that partake of that experience—and Christianity. This quality of deception, moreover, sharply distinguishes the “Messianic Jews” from other Christian denominations, for while those other churches may seek to preach the Gospel to the Jews, they neither mimic Jewish practices nor present their faith as a form of Judaism. Your acceptance of this donation will be interpreted by many in the community as an acknowledgment of the religious legitimacy of the “Messianic Jewish” movement. This acknowledgment would amount to a reward paid by the Jewish community to a group whose very existence presumes a calculated deception aimed at our people.13 We should not pay them such a reward.

 

 

We say this with no feeling of bitterness toward those Jews who have affiliated with “Messianic” congregations. Though they may have found a religious satisfaction in Christianity that for some reason seems to have eluded them in our synagogues, we do not wish to drive them away permanently. On the contrary: they remain our fellow Jews, our brothers and sisters. As we have said, we welcome them to our services and other congregational activities; our doors are always open to their return.14 But our openness to them does not require that we affirm their religious choice, a choice that effaces the lines separating us from Christianity and that defines us as a distinct religious community. We recognize that “Messianic Jews” may sincerely believe that belief in Jesus Christ is compatible with Judaism. Yet from our perspective, a perspective born of and educated through centuries of religious life and experience, that doctrine is a falsehood, for it runs counter to everything we believe and know about the faith and tradition we profess. To present a falsehood as though it is the truth is the essence of deception. And a falsehood is still a falsehood even if those who proclaim it regard it to be true. For these reasons, we think it best that your synagogue refuse, with all due thanks, the donation from the “Messianic Jewish” congregation.

 

A DISSENT

One member of this Committee disagrees with this decision and is persuaded that the synagogue may accept the donation. In this member’s view, the “Messianic Jewish” congregation should be treated as other Christian evangelizing groups in this regard. The Talmud makes a distinction regarding the intent of gifts from non-Jews.15 Clearly a contribution primarily designed to win legitimacy and potential converts in the Jewish community comes with idolatrous intent and would be forbidden. Since these contributions come in response to a tragic fire (possible arson) in the synagogue, however, it is possible to assume that the “Messianic Jewish” congregation gives, as do the other congregations, to demonstrate broad support for the synagogue among all religious communities in the area. The gift, if offered mipnei darchei shalom, to advance the cause of peace, should be accepted in that spirit. The majority of our Committee believe that the groups known as “Messianic Judaism” should be treated as “apostates” (for such is how they present themselves) rather than as “non-Jews.” We also believe that, given the deceptive nature of their religious program, any contribution from a “Messianic” congregation would be made with the desire “to win legitimacy and potential converts in the Jewish community” and should therefore be rejected.

 

NOTES

1 It is true that a number of members of “Messianic Jewish” congregations are gentiles, that is, individuals who were not born as Jews but who join these communities because they like the Judaic style of their religious life. We use the word “apostates” to refer to the group in general, because they present themselves as a form of Judaism and because their message is aimed at encouraging apostasy among our people.

2. See the following responsa: Teshuvot for the Nineties (TFN), no. 5754.1, pp. 143–46, and no. 5753.13, pp. 81–85; New American Reform Responsa (NARR), no. 110 and no. 242; Contemporary American Reform Responsa (CARR), no. 66, no. 67, and no. 68; and American Reform Responsa, no. 150.

3. Judaism and Christianity are separate, distinct, and mutually exclusive religions; one cannot simultaneously be Jewish and Christian. See TFN, no. 5755.17, pp. 251–58, and no. 5754.3, pp. 263– 64; CARR, no. 61; NARR, no. 88 and no. 109.

4. CARR, no. 68, at p. 112. On our relationship to returning apostates, see TFN, no. 5754.13, pp. 259– 60 and the sources cited therein.

5. BT M’nachot 73b, on Lev. 22:18; Yad, Maaseh HaKorbanot 3:3.

6. The analogy between Temple and synagogue is commonly based upon the designation of the synagogue as mikdash m’at, “the sanctuary in miniature.” See BT M’gillah 29a, on Ezek. 11:16 (“I have become to [the House of Israel] a mikdash m’at in the countries whither they have gone”).

7. BT Arachin 6a; Yad, Matanot Aniyim 8:8; SA, YD 254:2 (Isserles) and 259:4. See Siftei Kohein, YD 254:4, who makes the explicit connection between donations of sacrifices to the Temple and gifts to synagogues.

8. See BT Chulin 5a. The rule is derived from Lev. 1:2, “one from among you who offers a sacrifice to God . . . ,” suggesting that others “from among you” may not offer sacrifices. The excluded category is the mumar.

9. Isserles’ position is registered in SA, YD 254:2 and OC 154:11. It is apparently based upon a ruling by R. Yaakov Weil (fifteenth-century Germany), Piskei Mahari Weil, no. 67.

10. Resp. Mabit, 1:214. See also Sefer Chasidim, chap. 687: under certain conditions it is permitted to accept donations from a mumar for the writing of a Torah scroll.

11. Two leading commentators to the SA (Siftei Kohein, YD 254:4, and Magen Avraham, OC 154:18) cite both opinions without deciding between them. See as well Aruch HaShulchan, YD 254:4. R. Moshe Schick (nineteenth-century Hungary) suggests that the mumar’s gift might be accepted under two conditions: that we not identify him publicly as a donor (“since it is a contemptible thing” to inscribe his name in the synagogue) and that his gift constitute less than half of the total donations, the rest of which would come from “legitimate” donors. In this way, the mumar’s gift would be “nullified” by the preponderance of other donations (batel barov); see Resp. Maharam Schick, YD, no. 231. Even were we to accept Rabbi Schick’s view in principle (and one can raise serious objections to the theory upon which he bases his ruling), we could not apply it here, since the “Messianic Jewish” congregation would want to be acknowledged as one of the donor churches; indeed, it would be manifestly unfair to accept their money and not to thank them publicly.

12. See BT Chulin 94a; Yad, Dei-ot 2:6 and M’chirah 18:1ff.; and SA, CM 228:6.

13. To offer “aid and comfort” to transgressors is also a transgression, even if one does not commit the prohibited act. See BT N’darim 22a and parallels, and SA, CM 266:1, 356:1, and 358:5.

14. See D’varim Rabbah 2:7: “The gates of repentance are always open.”

15. See the sources cited in notes 5–7.

NYP no. 5761.3

CCAR RESPONSA

5761.3

Rabbinical Autonomy and Collegiality

She’elah

A Jewish woman from a nearby congregation recently contacted me. Her congregation does not currently have a rabbi, so she asked me to perform a baby naming ceremony for her daughter. She then informed me that although her husband is not Jewish, the rabbi who performed their wedding had “given him a Hebrew name,” and she asked that this name be included on her daughter’s naming certificate. Because I regard a Hebrew name to be a symbol of Jewish commitment to the covenant at Sinai, it is not my custom to assign Hebrew names to non-Jewish spouses. On the other hand, the rabbi who did assign the Hebrew name to this man is my colleague. If another rabbi has set the precedent of giving a Hebrew name to a non-Jew, is it my obligation to honor that act? (Rabbi Geoffrey Dennis, Flower Mound, Texas)

T’shuvah

Your question touches upon a classic conflict in Reform Jewish practice between two deeply felt religious principles. On the one hand, we are firmly committed to the idea of rabbinical autonomy. Each Reform rabbi functions, in his or her congregational community, as the mara d’atra, the local religious authority. This status, to be sure, does not grant the rabbi autocratic power to decide questions of religious practice. In our movement these are resolved cooperatively between the rabbi and the congregation. Yet within this cooperative model the rabbi enjoys a certain sphere of authority over issues of practice. When we speak of “rabbinical autonomy,” we mean that no other rabbi has the right to interfere in the recognized prerogatives of the rabbi of the congregation. The Central Conference of American Rabbis (CCAR), our rabbinical association, recognizes the autonomy of its members over questions of religious observance. Although the Conference may adopt resolutions that formulate a communal rabbinical position on these matters, these resolutions are seen as nonbinding upon its members. The individual Reform rabbi retains the freedom to determine his or her own standards of religious practice.1 Thus, from this standpoint, you are entitled set your own policy concerning the assignment of Hebrew names in your congregation regardless of the policies adopted by other rabbis.

On the other hand, the Reform rabbinate is more than an aggregation of isolated individuals. We are a community; as you pointedly note in your sh’eilah, we regard each other as colleagues, as fellow practitioners, as co-workers in a common enterprise. We therefore accept that our individual rabbinical autonomy is limited to some extent by a sense of collegial responsibility, the desire to honor and respect the actions of our colleagues in the exercise of their legitimate rabbinical functions. For this reason, you quite rightly feel an obligation to affirm your colleague’s decision concerning the granting of a Hebrew name to the non-Jewish spouse.

This conflict between personal autonomy and collegial responsibility is difficult to resolve. We cannot simply choose one side and reject the other out of hand, because we believe quite strongly in both. Yet we think there is a way of successfully negotiating between these opposing commitments. This path is pointed out by the Jewish legal tradition. The halachah, too, is beset by a tension between rabbinical freedom of decision and deference to communal standards. How Jewish law deals with this tension may suggest to us a method of dealing with our own.

In classical Jewish legal thought, the Babylonian Talmud is the supreme source of halachic authority. This is the case, writes Maimonides, because all Israel accepted or ratified the Talmud as their binding legal standard. It follows that the post-Talmudic legal decisors—Maimonides uses the term geonim to describe them all—enjoy no such authority. The halachic scholar is free to rule in accordance with his own reading of the Talmudic sources, even if this ruling is contradicted by the view of other authorities.2 In this respect, we can say that the Jewish legal tradition recognizes a high degree of rabbinical autonomy in the interpretation of Torah and halachah. Yet the tradition also contains an opposing view, that of R. Avraham b. David of Posquierres (Rabad; twelfth century), who holds that the rulings of the geonim have now attained the status of decided law; “we no longer have the authority to dispute their rulings on the basis of our own interpretation, unless the matter is a kushya m’fursemet,” that is, a long-standing controversy in the legal literature. In the absence of such a controversy, says Rabad, when there is a legal consensus among the post-Talmudic scholars, we are obligated to accept that position even when we disagree with the legal reasoning that supports it.3 This idea, in turn, is criticized by R. Asher b. Yechiel (Rosh; thirteenth to fourteenth century), who upholds the doctrine of rabbinical autonomy in no uncertain terms. He writes, “If the contemporary scholar disagrees with the words of the geonim and if he can bring persuasive Talmudic evidence to support his view, then ‘Jepthah in his generation is equivalent to Samuel in his generation,’4 that is, on any matter that is not decided in the Talmud, a judge may argue as he sees fit, even if he disputes the words of the geonim.”5 The pendulum swings back by the sixteenth century with the creation of the Shulchan Aruch, the legal “code” whose authors, R. Yosef Caro and R. Moshe Isserles, declare the halachah according to the consensus view among earlier scholars.6 Yet even that great compendium did not bring an end to rabbinical independence; halachists continue to this day to modify, adjust, and alter the Jewish legal consensus by writing commentaries, compendia, and responsa.7 

This back-and-forth debate between autonomy of decision and the constraint of consensus exists because both principles are indispensable. It is in the nature of Jewish law that the interpretation of the legal sources is the prerogative of the individual scholar, who must declare the truth as it appears to him or (nowadays) her, regardless of the opinion of others. Yet no rabbi is an island; the study and practice of Torah are a communal concern. When scholars derive conclusions from halachic texts, they do so not for themselves alone but for an entire community, to whom they are ultimately responsible. The accepted, “consensus” standards of ritual and ethical observance are not merely the opinions drawn by rabbis through a purely intellectual investigation of the texts. They belong to the people; they are the lines and the parameters by which the members of the community define themselves as Jews and within which they live their Jewish lives. Rabbis should be careful not to challenge this consensus in the absence of good and sufficient reason, for the members of the community are entitled to expect that the substance of their Judaism will remain reasonably consistent over time. Rabbis must therefore continually seek a proper balance between their freedom to interpret the Torah as they see fit and the reasonable expectations of the community that looks to them for guidance.

The same applies to Reform rabbis. We, too, cherish our freedom, but we know that our rabbinate is a communal practice. We as individuals do not define what a rabbi is and what a rabbi does. That is the task of the Jewish community and tradition, which delineate our roles and empower us to serve as “teachers in Israel.” We are “rabbis,” in other words, only to the extent that we act in a manner coherent with the tradition that has created the term and that gives it meaning. Our autonomy must therefore fit within the life of community and tradition; it must be balanced against the reasonable expectations of the colleagues with whom we work and of the people to whom we render our service.

Just what are those “reasonable expectations”? Since we are Reform rabbis, our colleagues and people are entitled to expect that we will conduct ourselves as members of that distinct and identifiable rabbinical community. Since our rabbinate, like all others, is a communal enterprise (i.e., since we cannot function as “rabbis” except in association with our colleagues in that endeavor), we can be expected to make every effort to honor and respect the actions our colleagues perform in the discharge of their rabbinical duties, even when those actions do not reflect our own standards of practice. Yet precisely because we are Reform rabbis, our colleagues and people know that we can and frequently do disagree among ourselves over important matters of religious practice. That is the nature of Reform Judaism and of the Reform rabbinate. We cannot reasonably be expected to alter our practice simply because a colleague “does it differently,” especially when the disagreement is a machloket l’shem shamayim, one that rises to the level of high principle.

How do we distinguish between those cases in which we can be expected to compromise and those in which we cannot? Here, the Rabad’s notion of kushya m’fursemet is helpful. When a particular dispute over an issue of deep significance has been identified as a “long-standing controversy” within Reform rabbinical practice, a rabbi is entitled to adhere to one side or the other as a matter of religious principle. In such a case, although the rabbi may choose to alter or modify his or her principled stance in the name of collegiality, there can be no reasonable expectation that he or she will do so. In a similar way, although resolutions of the CCAR and the responsa issued by this Committee exert no obligatory power over the religious practice of the individual Reform rabbi, such statements and rulings serve to inform our community as to the standards of practice that they can “reasonably expect” of the rabbi. Thus, if the Conference or this Committee has endorsed a particular practice, the rabbi is fully entitled to adopt that standard as his or her own and cannot be reasonably expected to compromise that position out of a sense of collegial responsibility to a rabbi whose standard differs. The following hypothetical cases may serve to illustrate our point.

CASE 1

A person converts to Judaism under the guidance of Rabbi A, who does not require t’vilah (ritual immersion) as part of the conversion procedure. The Jew-by-choice then joins the congregation of Rabbi B, who does require t’vilah for conversion. Rabbi B should accept this individual as a true proselyte, because there is a consensus of practice within the American Reform Movement to accept converts even if they do not undergo the traditional rites of circumcision and immersion.8 This stance has been affirmed by this Committee, even though our responsa have tended to encourage Reform rabbis to insist upon these rites,9 as well as by the Conference as a whole in its “Guidelines for Rabbis Working with Prospective Gerim,” adopted in 2001, even though that document encourages rabbis to educate potential Jews-by-choice concerning the traditional rites.10 A conversion has the status of a maaseh beit din, a “court action”;11 each Reform rabbi is expected to give “full faith and credit” to such actions performed by other Reform rabbis.

CASE 2

Rabbi A is scheduled to officiate at a wedding ceremony between a Jew and a non-Jew. At the last minute, the rabbi is called out of town and asks Rabbi B to officiate in his place. Rabbi B does not officiate at mixed marriages, and while she may agree to help Rabbi A in this instance, she is under no collegial obligation to do so. It is well-known that Reform rabbis are deeply divided over the propriety of officiating at mixed marriages. The Conference and this Committee are both on record as opposing the practice,12 and it is the consensus among us that the Reform rabbi has every right as a matter of religious principle to refuse to officiate at a mixed marriage. Thus, a colleague or congregant cannot reasonably expect that a rabbi who does not officiate at mixed marriages will change that position out of collegial considerations.

CASE 3

A family has scheduled a bar mitzvah service at the congregation of Rabbi A, who takes the view that non-Jews are not called to the Torah. The family at one time lived in another community, whose rabbi permitted such participation to non-Jews, including this family’s own non-Jewish relatives at the bat mitzvah service of their older child. Since it is well- known that issues of synagogue policy are matters of local custom and rabbinical prerogative, the family cannot reasonably expect Rabbi A to alter this practice, whether out of a sense of collegiality toward the other rabbi or out of a desire not to “discriminate” between the two children.

The foregoing helps to shape our thinking concerning your sh’eilah. The issue you face—the Hebrew name given by a colleague to a non-Jewish spouse—is not the private business of this man and his family. As you correctly note, there is really no such thing as a “Hebrew” name. The names we bestow are Jewish names; they testify to our membership in the Jewish people and to our participation in the covenant. This is not, in other words, a matter of little consequence but rather of high religious principle; it is precisely the sort of question on which you can be reasonably expected to take a principled stance and upon which you cannot be reasonably expected to change your practice for collegial reasons. In addition, this Committee has recently issued a responsum that supports your position in full: the “Hebrew” name we bestow is a covenantal name and not a biological one, and it is therefore inappropriate to grant such a name to a person who remains outside the covenant.13

For these reasons, the action of your colleague, while lying within his own prerogative, does not serve as a binding precedent upon you. The woman who has contacted you has every reason to expect that you will maintain your current practice. You are under no communal or collegial obligation to change it.

NOTES

1. See, for example, the section entitled “Historical and Halachic Notes” in Rabbi’s

Manual (New York: CCAR Press, 1988), 220: “The Notes do not establish or create a new Reform Halacha; rather, they aim to inform the rabbi of prevailing practice based on the historic continuities and discontinuities of Reform. From the beginning, Reform Judaism has been fed by two streams: by the authority of tradition and the freedom of the individual. These Notes are designed as a guide to our colleagues so that they may reach their decisions on the basis of both contemporary requirements and traditional practice.” In other words, while the rabbi’s decision ought to be informed by historical communal considerations, the decision ultimately rests in the rabbi’s own hands.

2. Yad, Introduction.

3. Rabad’s comment originates in Katuv Sham (ed. Jerusalem [1990], 198), his hasagot (critical notes) to the Sefer HaM’orot of R. Zerachyah Halevy. It is cited by R. Asher b. Yechiel, Hil. HaRosh, Sanhedrin 4:6.

4. See BT Rosh HaShanah 25b, on Deut. 17:9.

5. Hil. HaRosh, Sanhedrin 4:6.

6. On the codificatory work of Caro and Isserles, see Menachem Elon, Jewish Law (Philadelphia: Jewish Publication Society of America, 1994), 1309– 66. While both Caro and Isserles utilize halachic consensus as the key to determining the authoritative law, each follows his own method of identifying that consensus. Caro announces that he will accept the majority view from among the three great “pillars of halachic judgment”—Alfasi, Maimonides, and R. Asher b. Yechiel—unless the predominant practice follows a different view; see the introduction to his Beit Yosef. Isserles uses the rule hilch’ta k’vatra-ei, “the law follows the latest authorities”; i.e., he rules in accordance with the consensus view among the German and Eastern European scholars (his own teachers) of the fifteenth and early sixteenth centuries; see the introduction to his Darchei Moshe.

7. For a detailed argument that the contemporary halachist retains the discretion to rule as he/she sees fit, even in contradiction to the Shulchan Aruch, see Joel Roth, The Halakhic Process: A Systemic Analysis (New York: Jewish Theological Seminary, 1988), 81–113. See as well Moshe Zemer, Evolving Halakhah (Woodstock, VT: Jewish Lights, 1999).

8. The CCAR declared in 1892 that Reform rabbis are permitted to perform conversions “without any initiatory rite, ceremony, or observance whatever” (CCAR Yearbook 3 [1893]: 94 –95; American Reform Responsa, no. 68, pp. 236–37).

9. See Reform Responsa for the Twenty-first Century, no. 5756.13, vol. 1, pp. 99–120, which is largely taken up with a detailed critique of the reasoning cited in support of the 1892 resolution, at notes 35 and 36. There, too, we state the following: “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.”

10. The “Guidelines” are available at http://www.ccarnet.org/glgerim7.html. On the traditional rites, see section 8b; on the acceptance of conversions performed by colleagues, see section 10.

11. SA, YD 268:3.

12. CCAR Yearbook 83 (1973): 97; Rabbi’s Manual, 242– 43; American Reform Responsa, no. 147.

13. Reform Responsa for the Twenty-first Century, no. 5760.6, vol. 2, pp. 85–91, at notes 14 –17.

NYP no. 5761.4

CCAR RESPONSA

5761.4

The Synagogue and Organized Labor

She’elah

Our congregation is in the process of cost-estimating some new construction to our synagogue facility. Our cost estimators suggested that we can save some $300,000 by using non-union as opposed to unionized labor. Do Jewish law and ethics offer us guidance in making this decision? (Rabbi Stuart Gershon, Summit, New Jersey)

Teshuvah

Jewish tradition does offer guidance toward answering your question. That guidance is divided, however, between the affirmation of two conflicting concerns. On the one hand, Jewish law supports the right of workers to organize into unions in order to protect and further their economic and social interests. In our Reform Jewish tradition, this support is very warm indeed. On the other hand, consumers also have interests that deserve protection. One of these is the legitimate desire to reduce costs by spending less for goods and services. Our goal in this responsum is to examine both of these concerns and to propose a way to resolve their conflict in a reasonable manner.

1. ORGANIZED LABOR AND JEWISH LAW

We read in the Talmud: “the residents of a community (benei ha`ir) are entitled to establish the community’s units of measurement, the prices of commodities, and the wages paid to workers;  they are also entitled to punish those who violate these rules.”[1] This passage is a major source of the Jewish law of takanot hakahal,  the power of the community to govern itself by adopting legislation on a wide variety of matters.[2] The Talmud  makes clear, moreover,  that the term b’nei ha-ir (the residents of a community) applies not only to the local citizenry but also to the members of specific commercial  or trade group.  Thus we read in a related passage that the butchers  of a certain town adopted a rule that prohibited any one of them from doing business on a day that had been reserved for another.[3] Workers  in other trades possess similar powers.[4]  Medieval halachah, indeed, recognized that “any group whose members share a common  economic interest” is endowed  with the power of the b’nei ha-ir to legislate concerning  wages, competition, and working conditions.[5]  The regulations adopted by these groups are binding upon their members in much the same way as the laws adopted by the b’nei ha-ir are binding upon all the residents of the community.[6] This position was affirmed by leading twentieth-century poskim, who rule that the halachah permits workers  to organize in support of their economic interests.[7]

Some authorities go farther.  In their view, Jewish law does not merely permit workers  to form unions; it positively encourages  them to do so. In the words of R. Avraham Yitzchak HaKohein Kook, unionization partakes of the Torah’s insistence upon justice (tzedek),  righteousness (yosher), and the betterment of society (tikkun olam). The existenceof nonunion labor lowers the general wage rate and leads to inferior working  conditions; therefore,  such labor causes financial loss to all workers.[8] R. Ben Zion Ouziel regards unionization as a matter  of simple justice and common  sense. If workers  were forbidden to organize, the individual  worker  would find himself isolated and alone, left to the mercy of market  caprice, forced to hire himself out at starvation wages to the detriment  of himself and his family. Halachah empowers  workers to unionize, because it is through the power of organization that they can achieve decent wages, secure their economic dignity, and create institutions for cultural  advancement and social support.[9] Our  own Central  Conference  of American Rabbis has taken a similar stand. Frequently  during our history we have resolved to support the right of labor to organize,  to bargain  collectively, and to secure fair wages and humane  working  conditions. As early as 1921,  we resolved that “under the present organization of society, labor’s only safeguard  against a retrogression to former inhuman standards is the union.”[10] We have endorsed  progressive legislation,  such as the Wagner National Labor Relations  Act in the United States, that guarantees workers  the right to form unions.[11] We have supported the unionization of social workers serving Jewish communal agencies.[12] In particular, we have championed the cause of farm workers,  urging that they be allowed to organize to secure a decent standard of living and future for their children.[13]  Summarizing  this long history of support for organized  labor,  we declared in 1985 that “Trade Unionism traditionally is important to the well-being of America as a whole, and to minorities,  including the Jewish community in particular. Primarily concerned  with the large working class, it is perforce one of the strongest  supports and most secure foundations of our democracy. . . . The CCAR reiterates  its traditional support of organized  labor and calls upon its members to help establish local conferences of religion and labor,  and to remind their congregants of the importance of a strong,  effective, and responsible  labor movement to the health of American society. The CCAR calls upon the constituent agencies of the Reform movement  and upon the Union of American Hebrew  Congregations to give consideration to the establishment of programs and projects to further  these ends.”[14]

The language of this resolution requires that we as Reform Jews work to put the expressed ideals of our movement  into concrete practice. This, too, is but a matter  of simple justice and common  sense. We who have championed the cause of organized  labor for so many decades can hardly exempt our own institutions from the ethical standards we would impose upon others.  When our “constituent agencies” hire nonunion labor in preference to union workers,  we thereby help to depress the level of wages and deal a setback to the cause for which workers  organize.  We cannot  in good conscience do this. If we believe that unionization aids the cause of workers  by raising their standard of living and allowing them a greater say in their conditions of employment—and our resolutions clearly testify to this belief—then our support for unionized labor must begin at home. The synagogue bears an ethical responsibility to hire unionized  workers  when they are available.

2. FAIR PRICE AND JEWISH LAW

The question  we face, however,  is not as simple as that.  Jewish tradition considers the interests of the consumer  as well as those of the worker. This consideration is expressed through the law of onaah (price fraud), which specifies that buyers and sellers are entitled either to compensation or to annul a sale when the amount paid diverges more than a specified amount from the fair market  price for the object or service in question.[15] Unionized labor can be said to distort  the market  by forcing consumers to pay significantly more for labor than they would otherwise  do. To be sure, the laws of onaah do not as a matter  of technical halachah apply to wages paid to hired workers.[16] Still, the halachah displays a general tendency to supervise the stability of prices in the market place,[17] and it looks askance upon factors that upset this stability to the detriment of consumers.  Some authorities, in fact, limit the power of trade groups to set prices and wages, since in the absence of controls  these unions might cause unfair economic loss to the community.[18] Consumers, in other words,  are entitled to protection against unreasonable economic demands  from merchants and from workers.  If such protection is not afforded  them by the communal government, the consumers  may boycott  the providers  of the goods and services, even when these pertain to religious observance,  until the prices come down to appropriate levels.[19]  Jewish law, in other words,  recognizes that consumers  have a valid interest in maintaining a reasonable level of prices for goods and services, including the cost of labor.

To this, we may add the Talmudic  principle that “the Torah  protects  the property of Israel” (haTorah  chasah al mamonam shel Yisrael).[20] That is, Jewish law seeks to spare us unnecessary  expense in the observance  of mitzvot.  This principle motivates  poskim toward finding leniencies in the law when a more stringent  conclusion  would involve significant financial loss.[21]  It should be noted that this principle is not absolute.  It is balanced by the counter-principle “there  is no poverty in a place of wealth” (ein aniyut b’mekom ashirut): that is, price should be no object when it comes to the Torah  and to determining the proper  observance.[22] Various authorities over the centuries have sought to resolve the apparent conflict between these two principles.[23] At any rate, the fact that our tradition will at times take financial loss into account  in assessing the precise level of religious duty suggests that we should be careful before demanding that a congregation incur a large expense when alternatives are available.

3. TZEDAK AH: THE DEMANDS OF SOCIAL JUSTICE

How then shall we attempt to reconcile the conflict between these two values, the one favoring unionization, the other protecting the consumer? The answer,  it seems to us, rests with the demand  of our Torah  and our tradition that we do tzedakah. This word,  usually associated  with “charity,” is better translated according  to its Hebrew  root as “social justice.”  As justice, tzedakah is obligatory conduct,  not a voluntary contribution; thus, the court can require an individual  to contribute an amount that the court has determined is proper  for that person.[24] To put this more bluntly,  tzedakah is expensive. It is the nature  of tzedakah that it costs money. If we want to work for social justice, we have to be prepared to invest of our time and our substance.  And while there are limits to the amount that can be demanded of any person,[25] no Jew—and,  we would add, no Jewish institution—can escape the duty of tzedakah on the grounds  that it involves financial expense.

With  this in mind,  we can put  our  conflicting  values into  perspective. First,  let us consider  the concept  of onaah.  We noted above that a transaction may be canceled  when its price exceeds by a specified amount the “fair  market  value”  of the product in question.  On this basis, we might  conclude  that  if the cost of hiring  organized labor significantly  exceeds the cost of engaging  nonunion workers, the “union price”  is an example  of onaah  and  we have no ethical obligation to pay our  workers  at that  rate. We reject this conclusion. If, as we believe and  as we have resolved  on numerous occasions, unionization is an indispensable means  of securing  justice for workers in our society, then  our  dedication to tzedakah requires  that  we not set the “fair  market  value”  of labor  according  to the wage level for nonunion workers.  On  the contrary: it is the nonunion wage rate that qualifies for the label onaah,  for that  rate  depresses  the market, lowering  the wages and  the standard of living that  workers  would otherwise achieve. Justice rather  demands  that  we measure  the “fair market  price”  for labor  according  to the accepted  cost for union  labor in a particular locale. In would  be unjust and  injurious  to all workers were we to set the standard for “fair  wages”  according  to lower, nonunion scale.

Similarly, the demand  to do tzedakah modifies our understanding and application of the principle “the Torah  protects  the property of Israel.” All that principle means is that financial considerations may be relevant in determining how we are to perform  a mitzvah.  It does not mean that we are exempt from performing the mitzvah merely because it is expensive.[26]  Again, once we determine  that nonunion labor frustrates the mitzvah of social justice, it becomes clear that our own value commitments require that our institutions show a decided preference for hiring union labor. We acknowledge the existence of other visions of tzedakah than the one we have sketched here. We are aware that some will argue that nonunion labor in fact serves the cause of “social justice” for all by reducing the overall cost of goods and services and that lower wages mean that more jobs will be available for unemployed workers.  We will not contest these issues here. Suffice it to say that a general concept such as “social justice” can be meaningless in the absence of some substantive vision that gives it content.  Our particular vision of social justice, the understanding of that term that makes the most sense to us, is the vision put forth by the CCAR and by the prominent poskim whose words we have cited. It involves the empowerment of workers  to control  their destiny and to achieve goals (higher wages and benefits, better working  conditions, a more secure future for workers  and their families) that all of us want for ourselves and our children.  This is the vision of “social justice” that the Reform Movement has proclaimed for many years. If we believe what we preach,  it is our duty to practice the same.  In short,  although Jewish tradition does recognize the legitimate interests of consumers,  it does not teach us that consumers  are always entitled to the lowest possible price for goods and services. Rather,  it teaches that the interests of all of us are best served when we work together  to build a just society. Our synagogues are indeed consumers  of goods and services, but in their buying and selling, they ought to remember  the higher purposes  for which synagogues are established  in the first place.

CONCLUSION

In the final analysis, we cannot  tell your congregation what it “must” do. It is easy for us, who do not have to raise the three hundred thousand dollars of which you speak, to tell you that you must incur that expense. We recognize, too, that your decision must be based upon local factors of which we are unaware. For example,  it is sometimes the case that labor unions act in an unfair (to say nothing  of an illegal) manner.  Like all institutions, they can be corrupt, rapacious, or discriminatory. There are times, in other words,  when cooperation with a labor union may not serve the public interest and the cause of tzedakah. All we can tell you is that,  in general, Jewish tradition and our Reform Jewish interpretation of that tradition perceive unionization as an indispensable tool in the long struggle for social justice and the rights of workers.  For that reason, your congregation should make every effort to hire union labor for your construction project.

NOTES

1. BT Bava Batra 8b and Rashi ad loc.

2. Yad, M’chirah 14:9; SA, CM 231:27. On the subject of takanot hakahal,  see Reform Responsa  for the Twenty-first Century,  no. 5758.1, vol. 1, pp. 311–18,  at notes 4 –7.

3. BT Bava Batra 9a.

4. Tosefta,  Bava M’tzia 11:12.

5. R. Sh’lomo b. Adret, Resp. Rashba 4:185 (sh’kol chaburah sh’hem benei inyan echad harei hem ke-ir bifnei atzmah . . .). R. Asher b. Yechiel, Hil. HaRosh, Bava Batra 1:33, writes that “craftsmen” (baalei omanut) are empowered to set the regulations governing their trade,  as does R. Yitzchak b. Sheshet, Resp. Rivash,  no. 399. The law is codified in SA, CM 231:28.

6. One difference between laws adopted by the citizenry as a whole and laws adopted by professional groups is that the latter are considered binding upon the group’s members only if they meet with the approval of an adam chashuv, a “distinguished public figure” (BT Bava Batra 9a). The definition of this term, which in that Talmudic passage is applied to the Amora Rava, is the subject of some controversy. Some require that this person be a Torah scholar who serves as a leader in the local government (parnas al hatzibur; R. Yosef ibn Migash and R. Yonatan HaKohein of Lunel, cited in Shitah Mekubetzet, Bava Batra 9a; R. Menachem HaMeiri, Beit HaB’chirah, Bava Batra 8b; Magid Mishneh, Hil. M’chirah 14:11; SA, CM 231:28). Others do not require that this communal leader be a Torah scholar (Resp. Rashba 4:185). On the other hand, where there is no adam chashuv in place, the professional group may adopt whatever rules it sees fit and enforce them on its members. And at least one authority holds that the consent of the adam chashuv  is required only to approve measures taken by the association that involve fines and penalties against its members; all other rules, including the setting of wages and salaries, may be adopted without such approval (R. Moshe Feinstein, Resp. Ig’rot Moshe, CM 1:58). In our own legal environment, of course, the secular authorities, who regulate union-management relations through legislation, fulfill this function.

7. Among these poskim are R. Avraham  Yitzchak HaKohein Kook, N’tivah,  11 Nisan 1933; R. Ben Zion Ouziel, Resp. Piskei Ouziel  B’she’elot Hazeman, no. 46 (“It is beyond all dispute that our Sages recognize the rules adopted by unions of craftsmen or laborers  and by professional organizations”), and R. Moshe Feinstein, Resp. Ig’rot Moshe,  CM 1:58 (“There  is no basis in halachah for outlawing the formation of labor unions”). R. Eliezer Y’hudah Waldenberg, Resp. Tzitz  Eliezer 2:23, permits the formation and functioning of unions on the basis of local custom (minhag ham’dinah): laws governing labor-management relations  are matters  of communal authority, and the community is entitled through legislation to recognize labor unionization. See also R. Katriel P. Tekhursh, Keter Efraim,  no. 19, and R. Chaim David Halevy, Aseh L’cha Rav, 2:64.

8. See note 7.

9. See note 7.

10. CCAR Yearbook (CCARY) 31 (1921): 44.

11. CCARY 45 (1935): 79; CCARY 50 (1940): 104, 105.

12. CCARY 46 (1936): 78.

13. CCARY 83 (1973): 109; CCARY 86 (1976): 68; CCARY 89 (1979): 102.

14. CCARY 95 (1985): 239– 40.

15. See M. Bava M’tzia 4:3–7; Yad, M’chirah 12; and SA, CM 427. The amount of divergence is set at one-sixth  of the accepted market  price for the object or service. If the price charged exceeds the market  price by one-sixth,  the buyer is entitled to a refund of the overcharge;  similarly, if the price falls below the market  price by one-sixth,  the seller is entitled to compensation in that amount. Should the price charged diverge by more than one-sixth  of the market  price, the sale may be invalidated entirely.

16. SA, CM 227:33  (and see 227:29), derived from M. Bava M’tzia 4:9.

17. BT Bava Batra 89a; Yad, G’neivah 8:20 and M’chirah 14:1; SA, CM 231:2.

18. R. Menachem HaMeiri, Beit HaB’chirah, Bava Batra 9a; R. Yom Tov ben Ishbili, Chidushei HaRitva, Bava Batra 9a; R. Nissim Gerondi,  Chidushei HaRan, Bava Batra

9a. The “controls” spoken of here refer to the concept of adam chashuv (see note 6). The “distinguished public figure” functions as an arbiter between the conflicting economic demands of labor and management or of merchants and consumers.  A number of authorities suggest that all labor disputes must be submitted to the approval of the adam chashuv, in the form of a rabbinical beit din or a specially appointed court of arbitration, provided that such an agency exists within the community. These include R. Ben Zion Ouziel (see note 7), R. Chaim David Halevy (see note 7); R. Shaul Yisraeli, Amudim, Nisan 5726 (1966), 223; and R. Sh’lomo Daichovsky,  HaTtzofeh, 9 Tevet 5733 (1973), 3.

19. See M. K’ritot 1:7. R. Menachem Mendel Krochmal  (seventeenth  century; Resp. Tzemach Tzedek, no. 28) cites that mishnah  in permitting a consumer  boycott  against local fishmongers.

20. BT Chulin 49b and parallels.  Rashi ad loc., s.v. hatorah chasah, links the principle to the Sifra on Lev. 14:36.  See also M. N’gaim 12:5.

21. For example,  R. David Zvi Hoffmann (Resp. Melamed  Leho` il 1:91) permits a Jew who owns stock in a restaurant to retain ownership of his shares, even though the restaurant remains open during Pesach and the Jewish stockholder therefore  will profit from the sale of chameitz.  He seeks a lenient answer,  in part,  “because  the Torah protects  the property of Israel.”

22. See BT M’nachot  89a and parallels.

23. The most comprehensive summary  of these discussions is R. Chaim Chizkiah Medini’s nineteenth-century S’dei Chemed,  1:128,  p. 44. Among other passages, he cites R. Moshe Sh’lomo ibn Habib’s seventeenth-century work Sh’mot BaAretz  (section yom t’ruah, on BT Rosh HaShanah  27a). There, we read that the halachah does not determine  in advance the conditions under which either principle must apply. That decision is rather  left to the discretion  of the sages in every generation.

24. BT K’tubot  49a; Yad, Matanot Aniyim 7:10; SA, YD 248:1.

25. See SA, YD 249:1–2  for the ideal and practical  levels of giving.

26. The responsum cited in note 21 is not an argument against this point.  While R. Hoffmann explained  the search for a lenient answer on the grounds  that haTorah chasah al mamonam shel Yisrael, that principle did not in and of itself justify the answer.  The particular halachic question  there was whether  a stockholder in a corporation can be said to “own” its chameitz  and therefore  be found in violation  of the Torah  during Pesach. Hoffmann argues that the owning of stock in a company  does not constitute “ownership” in that sense. If, on the other hand,  he had concluded  that stock shares do constitute “ownership,” he would have required  that the stockholders sell those shares despite the financial loss incurred.

NYP no. 5761.6

CCAR RESPONSA

5761.6

May A Jew Married to a Non-Jew Become A Rabbi?

She’elah

A resident of my community, a Jew married to a non-Jew who does not practice any other religion, wishes to become a rabbi. She has been told that, because of her marriage, she will not be admitted into the Hebrew Union College-Jewish Institute of Religion. She wishes to know why, as a believing Jew who is committed to Jewish life, she cannot be accepted into our seminary as a candidate for the Reform rabbinate. (Rabbi James Gibson, Pittsburgh, PA)

Teshuvah

Most Reform rabbis in North America, members of the Central Conference of American Rabbis (CCAR), have attended and received their ordination from the Hebrew Union College-Jewish Institute of Religion (HUC-JIR).[1] It is the policy of HUC-JIR that a student who is married, engaged, or partnered to a non-Jew will not be ordained as a rabbi or invested as a cantor. Moreover, an individual in such a relationship will not be accepted as a student in the rabbinical or cantorial program at the College-Institute.[2] HUC-JIR is an independent institution that sets its own rules and standards for admission. It need not consult with the CCAR or with this Committee before adopting them. Still, we have been asked for our opinion as to this particular rule, and in our opinion the rule is a good one. We give it our full and unqualified support.

There was a time, not so long ago, when a sh’eilah such as this would surely not have been raised. Jewish law prohibits mixed marriage, that is, a marriage between a Jew and a non-Jew in which the non-Jewish spouse does not convert to Judaism.[3] The halachah goes so far as todeclare that such unions are not recognized as marriages at all (ein kiddushin tofsin).[4] Until very recent times, this prohibition was strongly felt and observed by the preponderant majority of the American Jewish community. The situation has changed, however, primarily as a result of two factors. The first of these is the rise in the incidence of mixed marriage among American Jews and the acceptance of this fact within the community. Indeed, surveys indicate that many Jews today regard mixed marriage as a “normal” aspect of Jewish communal life.[5] The second factor has to do with the response that many Jewish institutions have undertaken toward this phenomenon. If the Jewish community once turned its collective back upon those who “married out,” today’s emphasis upon Jewish survival and continuity leads many of our organizations to open their doors to the mixed-married in an effort to “keep them within the fold.” The Reform Movement in particular has instituted an energetic program of outreach, designed to help mixed-married couples and families feel welcome within our congregations and to explore and study Judaism.[6] These two factors seem to have created the impression that marriage to a non-Jew is no longer an impediment to full participation in Reform Jewish life. If that is the case, it is perhaps not so difficult to understand why a Jew might sincerely believe that her marriage to a non-Jew ought not to stand in the way of her becoming a Reform rabbi.

That belief, however, rests upon an incomplete, and therefore incorrect, perception of our attitude toward marriage between Jews and non- Jews. Although we do not use terms such as “prohibition” and “sin” to describe mixed marriage, and although we welcome mixed-married households into our community, we do not condone mixed marriage itself. As our Conference has written, “It is a mitzvah for a Jew to marry a Jew so that the sacred heritage of Judaism may be transmitted most effectively from generation to generation.”[7] Judaism, that is to say, “resists mixed marriage because it weakens the fabric of family relationship and the survival potential of the Jewish community, and because it makes it more difficult to establish the mikdash me’at [sanctity] that should be the goal of every Jewish marriage.”[8] These words carry a special weight for us as rabbis. The purpose of our rabbinical function, our teaching, counseling, and leadership, is to help our people make Jewish choices, build Jewish homes, and ensure the transmission of Jewish life and identity to our children. Mixed marriage tends to frustrate the achievement of these ends. For these reasons our Conference has resolved its “opposition to participation by its members in any ceremony which solemnizes a mixed marriage.” It is true that a significant number of Reform rabbis do officiate at mixed marriages (under widely varying circumstances, requirements, and limitations), and the resolution itself notes that members of the Conference “continue to hold divergent interpretations of Jewish tradition.”[9] Yet those rabbis who officiate at mixed marriages do so out of the hope that officiation will encourage the non-Jewish spouse to help build a Jewish home, to help raise Jewish children, and to one day make the choice to become a Jew. To put it differently, we Reform rabbis are not indifferent to the marriage choices of our people. On the contrary: we want them to make the choice for Jewish marriage, which by definition is a marriage between Jews. We do not in the least regret our welcoming attitude toward the mixed married and our efforts at outreach to them. But we should never forget that the ideal toward which we rabbis strive, teach, and lead is that Jews should marry Jews. Since one of the ways in whic we convey our teaching is through personal example, a rabbi’s life and home should embody this ideal.

It might be argued that our position here contradicts that which we enunciate in another responsum, where we suggest that a Jew should not be disqualified from teaching in a Reform religious school solely because he or she is married to a non-Jew.[10] If it is conceivable that a religious school teacher, who instructs his or her students in Judaism, may be a partner in a mixed marriage, why do we set different expectations for the rabbi, who is also a teacher of Judaism? The answer is that the religious school teacher and the rabbi play two very different roles in the life of our community. Mos of our religious school teachers are drawn from the ranks of our congregants, and they teach our children on a part-time basis. Our rabbis, by contrast, like our cantors and our Reform Jewish educators, have accepted upon themselves (and are properly expected by our community to live up to) higher standards of Jewish learning and observance than those that we demand of others. It is true that none of us, including those of us who are rabbis, achieves these higher standards with perfection. It is also true, however, that we and the people we serve continue to hold us accountable to them. We therefore conclude, as we write in that responsum, that “a Jewish religious professional, whose very life is dedicated to setting an example of Jewish commitment to which our people should aspire, cannot serve as a ‘positive Judaic role model’ if he or she is married to a non-Jew.”

We have no doubt that the individual who prompted this sh’eilah is a committed and caring Jew. Her desire to enter the rabbinate testifies to her commitment and to what we can only imagine has been a long and involved religious journey that has brought her to this point. Someday, perhaps, her husband will come to share that commitment to Judaism; should that happen, she might wish to consider once again a career in the rabbinate. Until such time, though the rabbinate is not yet a proper career choice for her, we hope that she will find fulfillment in the many opportunities for Jewish life and learning that are afforded her as a member of a Reform Jewish community.

NOTES

1. On the training and qualifications of rabbis, see section 2 of Reform Responsa for the Twenty-first Century, no. 5759.3, vol. 1, pp. 319–29. There, we note that as a matter of technical Jewish law no formal ordination is required in order that an individual may acquire the title “rabbi.” On the other hand, it has become the widespread minhag, or customary observance in our community to require that an individual seeking to function as a rabbi successfully complete a course of study at a recognized rabbinical school or yeshivah.

2. These rules are spelled out in section 6 of the “Policy and Consent Form” that each applicant for admission to HUC-JIR must fill out and submit to the National Director of Admissions and Recruitment. That section reads: “It is the policy and practice of Hebrew Union College–Jewish Institute of Religion that any student currently engaged, married, or partnered/committed to a person who is not Jewish (conversion is acceptable) will not be ordained or invested by HUC-JIR. Therefore, no person currently in the aforementioned circumstance shall be accepted to the Rabbinical or Cantorial program of HUC-JIR. Any applicant who is in a significant relationship with someone who is not Jewish (even if that person intends to or is already working towards conversion) should contact the National Director of Admissions and Recruitment to discuss how the policy may affect his/her application.”

3. This prohibition is rooted in Deut. 7:1– 4. Although the Torah text explicitly mentions the seven Canaanite nations, the Rabbis interpret the passage so that the prohibition applies to all gentiles (BT Kiddushin 68b). The Talmudi passage cites two midrashim, or derivations, in support of this extension. The first is the Torah’s statement in 7:4, “for they [the members of the seven nations] will turn your children away from Me to worship other gods”; this, says the Talmud, comes to include all those who are capable of turning your children away, and that includes all non-Jews. The other derivation is based upon the permit to maintain a female captive taken during war (Deut. 21:10 –14). The key phrase is verse 13, “after that you may come to her and possess her.” The Talmud understands “after that” to mean “after she converts to Judaism”; thus, prior to her conversion, marriage is prohibited.

4. Deut. 7:3 declares lo titchatein bam, which might be translated as “do not marry them.” The Talmud (BT Kiddushin 68b), however, reads it as “there shall be no legal institution of marriage between you and them” (see Rashi ad loc., s.v. lo titchatein bam). As Maimonides puts it, “When one marries [m’kadeish] a non-Jew, no valid marriage [kiddushin] exists” (Yad, Ishut 4:15). See also SA, EHE 44:8 (gentiles do not belong to the category of those individuals who can contract valid kiddushin).

5. In the words of one such survey, “The Jewish taboo on mixed marriage has clearly collapsed.” The findings indicate that 50 percent of the respondents “agree” with the statement “It is racist to oppose Jewish-gentile marriages.” Still again, 56 percent of the respondents are either “neutral” (40 percent) about marriage between a Jew and a gentile or see such marriages as a “positive good” (16 percent). See Responding to Intermarriage: Survey, Analysis, Policy (American Jewish Committee, Department of Contemporary Jewish Life, January 2001).

6. See www.urj.org/outreach.

7. Simeon J. Maslin, ed., Gates of Mitzvah (New York: CCAR Press, 1979), 36.

8. Ibid., 37.

9. For the text of the resolution, see CCAR Yearbook 83 (1973): 97. On the history of the CCAR’s attitude toward mixed marriage, see Rabbi’s Manual (New York, CCAR Press, 1988), 242– 43.

10. See Reform Responsa for the Twenty-first Century, no. 5758.14, vol. 1, pp. 275–79.

 

NYP no. 5761.7

CCAR RESPONSA COMMITTEE

5761.7

Human Stem Cell Research

 

She’elah.

Recently, scientists have reported some important findings from experiments conducted upon human stem cells. These results, we are told, signal the potential discovery of treatments for a number of dreaded diseases. Yet the stem cells used in these studies are usually taken from aborted fetuses or from embryos (zygotes) created in the laboratory. According to Jewish law and tradition, is it permissible to utilize human embryos and aborted fetuses in stem cell research?

Teshuvah.

  1. The Scientific Background.[1] Stem cells are a type of cell found in the human body at all stages of development: embryonic, fetal, and adult (in this context, an “adult” stem cell refers to a stem cell that occurs in the human organism after birth). While all other cell types, such as heart cells or skin cells, are specialized or committed to conducting specific biological functions, the stem cell is unique in that it is uncommitted to any specific function and remains so until it receives a signal to develop into a specialized cell. All stem cells are capable of renewing themselves and of becoming specialized or differentiated to yield the cell types of the particular tissues from which they originate; when the tissues become damaged or destroyed, the stem cells enable the body to restore them. Yet there are some important differences among these stem cells. Some stem cells are “pluripotent”: i.e., they have the capacity to develop into almost all of the more than 200 different known cell types. Stem cells that display this characteristic come from embryonic or fetal tissue.[2] Adult stem cells do not have this capacity. Adult stem cells do possess to some extent a characteristic called “plasticity,” the ability of a cell type derived from one tissue to develop into specialized cell types of another tissue. To date, however, it has not been demonstrated that the adult stem cell can be directed to develop into any cell type of the body.

During the past few years, researchers have succeeded in isolating pluripotent stem cells from the early (4- to 5-day) human embryo (called the blastocyst) and in growing them in a laboratory setting.[3] This is a dramatic development, one that may well portend some significant advances in medicine and health. A number of deadly illnesses–among them  Parkinson’s disease, Alzheimer’s disease, diabetes, chronic heart disease, liver failure, cancer, multiple sclerosis, and spinal cord injury– ravage the body by destroying organs and cell tissue. Scientists hope either to cure or to control these diseases by manipulating stem cells to generate new tissue to replace that which the diseases have destroyed and to restore vital bodily functions. In addition, as this technology becomes more advanced, it is possible that whole organs might be created for use in transplantation, a critical desideratum given the ongoing shortage of donor organs available for this purpose. Finally, the study of embryonic stem cells can help us gain a better understanding of genetics and human development, including the causes of birth defects, and consequently aid us in the effort to correct or prevent them.

  1. The Moral Challenge. Stem cell research, therefore, is fast emerging as one of the most hopeful fronts in our age-old battle against disease, and we are properly encouraged by its progress. Our happiness, however, is tempered by our concerns over the nature of this research, particularly as it involves fetal and embryonic stem cells. (The derivation of adult stem cells does not pose similar concerns; as we have noted, however, fetal and embryonic stem cells offer much better prospects for research.) In order to derive fetal stem cells, scientists must utilize aborted fetuses. In order to derive embryonic stem cells, they must destroy the embryo; that is, they must kill the human organism at its earliest stage of development. Such laboratory manipulation of human fetuses and embryos raises questions of great moral seriousness, and we must not ignore these questions even when that research carries the prospect of important medical breakthroughs. On the contrary: the demand that we behave in an ethical manner, a demand that is central to our concern as religious people, does not cease to apply to us when we enter the laboratory. In our scientific lives, no less than in our social or political lives, we are required to ask whether our acts, no matter how well-intentioned, pass muster before the bar of morality. As Jews, in particular, we ask these questions from the standpoint of our participation in a tradition that has a great deal to say concerning the ethics of science and medicine.[4]

What, then, should be our stance with regard to stem cell research? Is this procedure coherent with the duties imposed upon us by our Jewish moral tradition as we Reform Jews best understand it? Are we permitted to abort the human fetus and to destroy the human embryo for the purpose of medical experimentation? If so, are we permitted to create embryos and fetuses intentionally in order to use them subsequently in this manner?

These, as we shall see, are not easy questions to answer. While the answers we have arrived at represent in our view the best and most persuasive response to these questions, we do not claim to have resolved all problems with absolute certainty. Our chief hope, therefore, is that our teshuvah will suggest a fruitful way for us as Reform Jews to think and to talk about the moral issues connected with stem cell research. In that way, it may prove helpful to us as we continue our discussions and debates over this latest development in medical technology.

  1. The Mitzvah of Medicine. Jewish tradition holds the practice of medicine to be a mitzvah, a religious duty. The Torah, to be sure, does not explicitly enjoin us to practice medicine, and though the Rabbis deduce from Exodus 21:19 that the physician is permitted to ply his craft,[5] they do not suggest that the verse obligates him to do so. That conclusion is left to the great post-Talmudic authorities, the rishonim, among them R. Moshe b. Nachman (Nachmanides or Ramban, 13th-century Spain).[6] In his Torat Ha’adam[7] Ramban writes that the “permission” of which the Rabbis speak is in fact a mitzvah, because medicine falls under the category of pikuach nefesh, the saving of life, an act that according to all opinions is most certainly a mitzvah and that takes priority over almost all other religious obligations set forth under the Torah.[8] This understanding, which has been adopted by the leading halakhic compendia,[9] reflects the predominant[10] Jewish attitude toward the practice of medicine. Our tradition requires that we utilize our knowledge and our power to their utmost in order to heal the sick; “when one who delays in doing so, it is as if he has shed blood.”[11]

When we speak of the mitzvah of medicine, we have in mind more than just the dispensing of treatment to patients by physicians and other health care professionals. “Medicine” as we understand it today is a scientific discipline, defined by the canons and practices of a scientific community. Among these canons and practices is the insistence that medicine is an experimental science, founded upon extensive, carefully controlled laboratory and field research. It is this body of research, a continuing process of testing, verification, and discovery subject to the critical review of peer scientists, that commands our respect for the practice of medicine[12] and that empowers physicians to speak and to act with authority. For these reasons, it is difficult to draw firm distinctions between the “pure” and “applied” aspects of medical science. The scientist who tests and develops a therapy is engaged in the mitzvah of healing just as surely as is the physician who administers it to the patient; the work of each is just as essential to the saving of human life as is the work of the other.[13] If we define the administration of life-saving medical therapy as pikuach nefesh, we should not forget that physicians could not save lives were it not for the extensive scientific research upon which our contemporary practice of medicine is based. Since research into human stem cells partakes of the mitzvah of healing, surely our society ought to support it.

  1. Jewish Tradition and Respect for Human Life. Medicine, however, is not the only relevant aspect of the mitzvah of pikuach nefesh. The commandment to save life reflects our tradition’s demand that we respect life and honor it. This implies an obvious limitation upon the way we are permitted to practice medicine: we are not allowed to commit murder, even if the shedding of one person’s blood will lead to healing for another.[14] This idea is linked in our classical texts to the concept of yehareg ve’al ya`avor:[15] we recognize that there are certain actions we must never perform, even at the cost of our lives, because our covenant with God requires no less. In the present context, it teaches us that we may not practice medicine in such a way that is destructive of human life. For example, under certain carefully specified conditions it is morally permissible to conduct medical experimentation upon human subjects. Yet it is clearly forbidden to sacrifice the life of the subject, even if the therapy being tested has the potential to save many lives in the future, for we may not use murder as a means of healing.[16] Does this rule hold in the case before us? Does the prohibition against murder, which protects the day-old infant,[17] apply as well to the human organism in its prenatal stage? If it does, then it is difficult to imagine how stem cell research could be deemed moral from the standpoint of Jewish law.

Even if the destruction of the fetus or the embryo is not considered an act of murder under Jewish law, we cannot automatically conclude from that fact that the destruction is “permitted.” The principle we call “respect for human life” is not identical with the prohibition against bloodshed. It reaches beyond the scope of specific prohibitions to touch upon our more general moral commitment to the sanctity of human life.[18] To say that human life is sacred is to say that, at some definable point, it is inviolate, that it is protected and preserved from our power to control, to manipulate, and to destroy. How does this commitment inform our attitude toward prenatal life? Is our belief in life’s sanctity compatible with laboratory experimentation upon–and the concomitant destruction of–the fetus and the embryo, even if that experimentation may lead to the discovery of life-saving medical therapies?

  1. The Status of the Prenatal Human Being. We are asking, therefore, whether and under what circumstances we may destroy the prenatal human organism for the advancement of medicine and, ultimately, the goal of pikuach nefesh. To answer this question, we must determine the status of the fetus and the embryo under Jewish law. Since we would never imagine that it is permissible to sacrifice the day-old infant “in the interests of science,” we must ascertain whether the fetus and the embryo possess a status that is legally inferior to that of the infant. If its status indeed is a lesser one, then perhaps we are morally justified, under certain circumstances, in sacrificing the prenatal human being for the sake of medical research.
  2. The Fetus. The traditional Jewish discussion of the status of the fetus customarily begins with the following Mishnah:[19]

“If a woman experiences life-threatening difficulty giving birth, the fetus is dismembered in her womb and removed limb from limb, for her life comes before its life (mipnei shechayeha kodmin lechayav). Once the major part of (the fetus) has emerged, it may not be harmed, for one person (nefesh) is not sacrificed on behalf of another.”

The text clearly mandates abortion in this case, but the authorities disagree as to the grounds on which it does so. Maimonides sees the fetus as a rodef, a “pursuer” that threatens the life of the mother; like all pursuers, the fetus may be killed if necessary to save its victim from death.[20] Rashi offers another interpretation:[21] so long as the fetus has not emerged from the womb, it is not a nefesh, a full legal person, and the mother’s life therefore takes precedence over its own. Once it has emerged, it acquires the status of a legal person; therefore, “one nefesh is not sacrificed on behalf of another.” Rashi, in our view, provides the better and more coherent reading of the Mishnah’s text.[22] And while others may differ on that point, there is general agreement that Jewish law does not regard the fetus as a nefesh, a full legal person. For this reason, the killing of a fetus is not considered or punished as an act of murder under the halakhah.[23] And since the fetus possesses a legal status inferior to that of the mother, a number of halakhic authorities permit abortions in situations where the mother’s life is not endangered by the birth of the child but where the abortion is necessary for her physical or mental health.[24] Given that the fetus does not enjoy the entire range of protections that Jewish law accords to the full legal person, we might conclude that it is permitted to abort the fetus in order to utilize its tissue for experimentation aimed at the development of life-saving treatments.

That conclusion, however, would be a hasty one. Though the fetus does not qualify as a nefesh, the halakhah nonetheless accords it a high degree of protection. We see this protection at work in both a negative and a positive context. The negative context is that Jewish law prohibits feticide in the absence of serious cause. Virtually all authorities hold this view, although they vigorously dispute the nature of the prohibition[25] and the definition of the “serious cause” that overrides it.[26] The positive context is that the laws of pikuach nefesh apply to the fetus: we are required to violate the laws of Shabbat or Yom Kippur if necessary in order to save its life.[27] Even though the fetus is not technically a nefesh, it is in any event a potential person, a “nefesh in becoming,” so that “we violate one Sabbath on its behalf so that it may one day keep many Sabbaths.”[28] The fetus may occupy a lower legal status than other human beings, but it is a human being; it partakes of the sanctity of human life, and it deserves our honor and respect.

Taken together, these two elements of Jewish teaching concerning the fetus can serve as a guide to our own conduct. Because the fetus is not a nefesh and because the mother’s life and health takes precedence over it, we can confidently permit abortion in circumstances other than mortal danger to her. Yet because the fetus is a human organism, a “potential nefesh,” we condone abortion only for truly weighty justifications; “we do not encourage abortion, nor favor it for trivial reasons, nor sanction it ‘on demand.’”[29] Specifically, abortion is indicated in order to safeguard the health of the mother or to spare her great physical or emotional pain.[30] It is difficult to define a set of abstract rules governing the decision for or against abortion. That decision requires a careful consideration of the facts and circumstances of the particular case. Yet we have written that abortion should not be performed for reasons other than “serious maternal anguish,” that is, a real set of difficulties faced by a particular woman.[31] The destruction of fetal life for any other reason stands in direct conflict with our commitment to the sanctity of that life. We therefore cannot sanction abortion for the purpose of harvesting fetal tissue for use in medical experimentation, even though the goal of that experimentation is the advancement of science toward new life-saving therapies. On the other hand, if a pregnancy has been terminated for a reason that we would regard as morally sufficient, we are permitted to use the aborted fetus in medical experimentation. We have long approved of autopsies for scientifically valid purposes;[32] the use of fetal tissue and organs would clearly qualify for the same approval, so long as the research is not the actual motivation for the abortion.

  1. The Embryo. What is the legal status of the embryo, the fertilized egg that does not reside in utero? This question poses a special difficulty for the halakhist. The classical sources certainly did not envision the possibility that a human embryo might exist and develop in a petri dish; how then can they speak to the legal status of that embryo? Contemporary authorities, however, note that while the sources do not discuss the embryo, they do discuss the case of the fetus at its earliest stages of development and that we can learn much from those discussions. The Talmud holds that prior to its fortieth day of gestation the fetus, lacking form, is to be regarded as “mere water” (maya be`alma).[33] This determination has some significant legal consequences[34]and, most importantly for our purposes, figures prominently in the Jewish law of abortion. A number of decisors agree with the stance of R. Eliezer Yehudah Waldenberg that “when an abortion is indicated for medical reasons, it is best to perform it prior to the fortieth day of gestation. The law is much more lenient at that point inasmuch as the fetus prior to forty days is maya be`alma.”[35] We should be careful not to read too much into the forty-day distinction. The fact that abortion is easier to permit prior to the fortieth day does not mean that it is not prohibited at all.[36] And the law of pikuach nefesh, which as we have seen applies to the fetus, presumably applies to any fetus, even for one that is less than forty days old.[37] The distinction does indicate, though, that while we respect and honor human life from its conception, the human organism at this earliest stage of its development is seen as having a lesser or inferior legal status than that possessed by the fetus at a later stage. Its lesser legal status, in turn, suggests that it exercises a lesser claim to protection than it does subsequently.

How might this insight inform our understanding of the status of the embryo? An important ruling on this subject is that of R. Shmuel Halevy Wasner,[38] who considers a question arising from the IVF procedure: does the law of pikuach nefesh apply to the zygote? Are we permitted to violate the laws of Shabbat if this is necessary to “save” the embryo and to allow it to continue its development in the petri dish? Wasner responds that, while we are required to do just that for the fetus, and apparently even for the fetus prior to its fortieth day of gestation,[39] we are forbidden to violate Shabbat on behalf of the embryo that has not yet been implanted into the womb. He writes that the law of pikuach nefesh applies to the fetus, even though it is not a full legal person, because most fetuses will survive, be born, and become full legal persons. In Jewish ritual terms, the fetus will likely become a ben mitzvah, a person subject to the obligations of Torah; accordingly, we apply to it the principle “we violate one Sabbath on its behalf so that it may one day keep many Sabbaths.” We cannot say the same of the zygote. We cannot say that most of these embryos will “likely” develop into persons (nefashot), because they lack the minimum qualification–implantation into the womb–that would enable us to make that statement. The embryo, therefore, possesses a legal status inferior to that of the fetus, and one element of this lesser status is that Jewish law imposes no positive duty to “save” its life.

If we have no duty to protect the embryo from death, it might follow that the halakhah does not explicitly prohibition its destruction. And if destruction is not explicitly prohibited, it might well be permitted under particular circumstances. For example, the procedure of in vitro fertilization (IVF) requires the creation of many more embryos than can be implanted into the womb of the woman who donated the eggs or of a “host mother.” What shall we do with the “excess” embryos, those not used for implantation? Must we preserve them ad infinitum or may we discard them? Two leading contemporary halakhists rule that it is indeed permissible to discard these excess embryos: not only are they not “likely” to become full nefashot, there is no possibility that they will do so, since there is no intention to implant them. We owe no moral duty to these embryos, in other words, that would forbid us from discarding them.[40]

This Committee has previously reached a similar conclusion.[41] We hold that it is permissible to destroy excess embryos for two reasons. First, we accept the Jewish legal doctrine of the nefesh. “Personhood,” according to this teaching, is a characteristic possessed exclusively by members of the human community, that is, by men, women, and children; the human organism does not become a full legal person until birth. This does not mean that we owe no moral duty toward the human organism prior to its birth; we most certainly do. We believe, however, that these obligations exist precisely because the fetus and embryo are “persons in becoming.” The excess embryo, unlike the fetus or the embryo that is intended for implantation, has no potential to become a nefesh; therefore, while we would not condone its wanton destruction, we would permit it for causes of lesser gravity than those we would ask in the case of abortion. Second, the discarding of excess embryos is positively indicated as an important element of IVF. Were we to require that every one of these embryos be preserved, we would place a cumbersome burden upon hospitals and laboratories. Under such conditions, many of these institutions would likely refuse to perform IVF, thus rendering the procedure intolerably expensive or simply unavailable to many of those who seek it. The destruction of the excess embryos therefore serves to make possible the fulfillment of the mitzvot of healing and procreation.[42] Moreover, we have extended this permit to cover medical experimentation: if Jewish tradition allows us to destroy these excess embryos, we think it would surely allow us to use them in experimentation aimed at the advancement of medicine, to the fulfillment of the mitzvah of pikuach nefesh.[43] These embryos may therefore be utilized in human stem cell research. This opinion, we might add, is shared by other leading scholars in the field of Jewish medical law and ethics.[44] This permit for the destruction of such embryos for research purposes would obviously extend to the use of existing stem cell lines, that is, stem cells that have already been derived and that are currently preserved in laboratories.

  1. The Creation of Embryos for Medical Experimentation. The human embryo is largely “unprotected” by Jewish law. There is no explicit halakhic prohibition against its destruction, and partly for this reason we feel morally confident about permitting the destruction of “excess” embryos created as part of the IVF procedure and about permitting the use of these embryos in medical research. Let us take our inquiry to its next logical step: would it be also permitted to create embryos explicitly for purposes of medical research? It is not difficult to sketch an argument in favor of a “yes” answer. Newly-created embryos, after all, are destined for the laboratory and not for the womb. Like excess embryos, they have no potential to develop into full human persons. If the lack of that potential leads us to permit the use of excess embryos in medical research, why shall we not say the same for embryos that are created for no other purpose than medical research? The analogy between the two sorts of embryos, however, is not tight enough to support that conclusion. We do not create excess embryos with the explicit intention to destroy them. They are the necessary and unavoidable by-product of the procedure of in vitro fertilization, which requires the creation of more embryos than can be utilized in the initiation of pregnancy. If we could perform IVF without creating excess embryos, we would do that; if we could use these embryos for other purposes or store them in an economically feasible manner so as to obviate the need for their destruction, we would do that. We permit the discarding of excess embryos, not because of their “inferior” legal status (though that low status does remove a major moral obstacle to their destruction), but because in order to make IVF available to those who seek it we have no choice but to discard them. Given that the excess embryos will in any event be destroyed, we think it is entirely proper that their destruction be accomplished as part of the research that might lead to the discovery of life-saving therapies. None of this requires the conclusion that we are permitted to create human embryos explicitly in order to destroy them, even for medical purposes. The analogy, in short, does not work.

On the other hand, we could argue for an affirmative response without resorting to analogies at all. We might reason in a more deductive fashion: if the mitzvah of pikuach nefesh overrides virtually all other religious and moral obligations imposed in the Jewish tradition, then surely it justifies the creation–and destruction–of human embryos in the name of medical science, particularly given the lack of any concrete prohibition against killing the embryo. This argument does have persuasive force, but that force lies in the sheer power of calculation. It depends upon the assignment of relative values to the human organism at different stages of its development: the nefesh receives a higher score than the not-yet-nefesh. It then imagines a conflict between the life of the nefesh and the life of the embryo, a conflict that the nefesh automatically wins. This mathematical approach is elegant in its simplicity, but in our judgment it is too simple, for it ignores some vital moral issues raised by the destruction of embryonic human life.

We repeat: embryonic human life. Let us not mince words. Although the fertilized egg may be called an “embryo,” a “zygote,” or a “blastocyst,” these labels can mask the fact that we have here a human being, an organism that contains all the genetic material that would, under the proper conditions, develop into a full legal person. As a leading medical text puts it: “The time of fertilization represents the starting point in the life history, or ontogeny, of the individual.”[45] The embryo may not have attained the status of a nefesh, a legal person, a member of the human community, and its unwarranted killing may not be defined as “murder.” It is, however, a human being, and by that token it partakes of the sanctity of all human life.

Rather than attempt to calculate the value of one human being against that of another, let us instead ask ourselves what this sanctity means. Before we say “yes” to the creation and destruction of human embryos, with all the marketing, trafficking and commercialization that would inevitably accompany their widespread use in laboratory research, let us consider what our commitment to the essential humanity of the embryo ought to demand of us. We Reform Jews might well answer that question in various ways. Yet even in its most minimal definition, sanctity requires the recognition that human life is at some point inviolate, that it lies beyond our reach and our manipulation. This inviolability is the single greatest moral distinction between human and all other forms of life. We accept the notion that animals can be brought into the world with the express purpose of being killed to serve our purposes. We do not apply that notion to human life, because our sense of the sanctity of human life calls forth from us a response of awe and reverence rather than dominion and utility. There is no reason to assume that this awe and reverence do not apply to human life even at the embryonic stage, for even there, in the microscopic fertilized egg, lies the supreme potential for humanity.

Differences in legal status do help us to make difficult choices. This is particularly true in the matter of abortion. It is precisely because the fetus is not classified as a nefesh that we are permitted to make the otherwise unjustifiable decision to sacrifice its life on behalf of the life, health, or extreme anguish of its mother. Yet that decision is made in light of the actual and direct danger that the continuation of the pregnancy poses to a particular woman. As we have suggested, the fetus’s lower status would not justify its destruction for the sake of medical research that might yield results that might be helpful to some as-yet unknown persons in the distant future. We think that the same considerations apply to the embryo. The zygote’s status under Jewish law may be lower even than that of the fetus;[46] for this reason, we can countenance the destruction of excess embryos created as part of the IVF procedure and their use in medical research. We do not accept, however, that this lower status would permit us to create embryos for no other purpose than to destroy them in furtherance of research that might well not lead to therapeutic benefits for some unknown person in a far-off future. To permit that action would be to stretch the definitions of pikuach nefesh and refuah beyond plausible boundaries. To permit that action, indeed, would be incompatible with our commitment to the sanctity that inheres in these embryonic human lives.

We should emphasize, finally, that we speak here exclusively to the current scientific situation. The question before us has to do with experimentation, with the destruction of human embryos as part of a research protocol that might someday lead to discoveries that would offer therapeutic benefit to actual patients. It is because any such benefit is many steps and quite possibly many years removed from medical reality that we cannot apply to that research the designation of pikuach nefesh. Were that reality to change–specifically, were science to develop from stem cell research real therapies to treat life-threatening illnesses like those mentioned at the outset of this teshuvah–then our answer would quite possibly change as well. In that case, we might well conclude that the need to derive the necessary stem cell material overrides our concern for the life of the embryo We might say this for two reasons: first, because there is no Jewish legal prohibition against the destruction of the embryo at any rate; and second, because the real prospect that this material would provide therapeutic benefit to an actual patient would easily qualify the therapy as pikuach nefesh. The matter requires further careful study, not only by this Committee, but by all who are concerned with Torah and its application to the fateful moral choices that we are called upon to make.

Conclusion. In summary, we hope to have made the following points.

  1. The practice of medicine is a mitzvah, partaking of the duty to save life. Because medicine is an experimental science, the mitzvah of medical practice includes medical research as well as the direct treatment of patients. For this reason, we are encouraged by the dramatic therapeutic prospects offered by research into human stem cells.
  2. All human life, including prenatal human life, possesses an inherent sanctity that requires our respect and honor and that conflicts with the demand that we destroy it for our own purposes, even medical purposes.
  3. The fetus is not a nefesh, a full legal person. Abortion is therefore permitted for reason of the life or health of the mother. It is not permitted in order to obtain fetal tissue for medical research. The tissue of fetuses that have been aborted for morally justifiable causes, however, may be utilized in that research.
  4. The legal status of the embryo that exists outside the womb is inferior to that of the fetus. There is no duty to save it from death; nor is there an explicit prohibition against its destruction. For this reason, it is permissible to discard the excess embryos created as part of the procedure of in vitro fertilization and, by extension, to use them for purposes of stem cell research. If we may destroy some embryos in order to derive stem cells for the sake of that research, it is certainly permissible for scientists to make use of the already existing lines of stem cells in possession of scientists.
  5. It is not permissible to create embryonic human life for the purpose of destroying it in medical experimentation. It might be permissible, however, to create and destroy embryonic human life in order to derive stem cell material that would be used as medical therapy for actual patients. The development of such therapies, if it ever occurs, lies in the distant future. In the meantime, it is incumbent upon all of us to continue to study, consider, and debate the moral implications of this promising new avenue of medical research.

NOTES

  1. The following account is based upon the report entitled Stem Cells: Scientific Progress and Future Research Directions, prepared by the National Institutes of Health of the U.S. Department of Health and Human Services, June, 2001 (available at ). Our description draws especially upon the report’s “Executive Summary,” numbered as pp. ES-1 to ES-10. We take this opportunity to state the obvious (which, though obvious, deserves emphasis): we are rabbis, students of Torah and Jewish text. We are not scientists, and we claim no particular expertise on scientific and technological matters. What follows is by no means intended to serve as a comprehensive explanation of the nature and the current state of human stem cell research; readers seeking such an explanation are encouraged to consult the report and the literature it cites. Rather we offer a basic, broad-outline sketch of the current state of the science. We hope that this account will provide sufficient background for the discussion of the Jewish religious and moral issues that are raised by this research and that are the proper focus of our teshuvah.
  2. Embryonic stem cells are derived from a group of cells called the inner cell mass, part of the early embryo, or blastocyst. Fetal stem cells are found in fetal tissue that was destined to be part of the gonads. See Stem Cells, ES-2.
  3. The breakthrough study is that of James A. Thompson, et al., “Embryonic Stem Cell Lines Derived from Human Blastocysts,” Science 282 (1998), 1145ff. A similar study concerning fetal stem cells (also called germ cells) is M. Shamblott et al., “Derivation of Pluripotent Stem Cells from Cultured Human Primordial Germ Cells,” Proceedings of the National Academy of Sciences 95 (1998), 13726ff.
  4. The scope and depth of this tradition can be seen in the proliferation of books with titles such as “Jewish Medical Ethics” and the like. Most of these are published by Orthodox rabbis. Among the best are Fred Rosner and J. David Bleich, Jewish Bioethics (New York: Sanhedrin Press, 1979) and Fred Rosner, Modern Medicine and Jewish Ethics (Hoboken: Ktav, 1986). A particularly useful work is A.S. Avraham, Nishmat Avraham (Jerusalem: 1982–), a six-volume compilation of halakhic analysis and decisions on medical matters, keyed according to the order of the Shulchan Arukh. An important work emanating from the Conservative Jewish camp is Elliot N. Dorff, Matters of Life and Death (Philadelphia: JPS, 1998). In the Reform context, our own responsa tradition has produced numerous decisions and essays on medical topics, ranging from birth control and abortion, to genetic engineering, the treatment of the terminally-ill, organ donation and transplant, the social responsibility of the medical profession, and more. This tradition is summarized and annotated in Mark Washofsky, Jewish Living (New York: UAHC Press, 2001), 220-268 and 445-456.
  5. BT Bava Kama 85a, a midrash on the words rapo yirapei.
  6. Mention should also be made of the theory of Maimonides (Commentary to the Mishnah, Nedarim 4:4), who learns that medicine is a mitzvah from Deuteronomy 22:2 (vahashevoto lo), which the Talmud (BT Sanhedrin 73a) reads as implying a duty to rescue. Medicine, again, becomes an obligatory and not merely a permitted practice.
  7. Torat Ha’adam, ed. H.D. Chavel (Jerusalem: Mosad Harav Kook, 1964), 41-42.
  8. That we have a positive duty to save the lives of those who are in danger is derived from Lev. 19:16 (“do not stand idly by the blood of your fellow”); see BT Sanhedrin 73a; Yad, Rotzeach 1:14; Shulchan Arukh Choshen Mishpat 426. That this obligation outweighs virtually all other duties imposed by the Torah is derived in BT Yoma 85b, from a midrash on Lev. 18:5; see Yad, Yesodei Hatorah 5:1 and Shulchan Arukh Yore De`ah 157:1. Even if the Talmud does not explicitly identify medicine with pikuach nefesh, Ramban notes that the halakhic literature does require that the laws of Shabbat and Yom Kippur be set aside when, in the opinion of a physician, their observance would endanger life. See M. Yoma 8:5-6 and BT Yoma 83b; these rules are summarized in Shulchan Arukh Orach Chayim 328-329 and 618.
  9. Tur and Shulchan Arukh, Yore De`ah 336:1.
  10. We say “predominant” because one stream of thought in the classical and (to a lesser extent) the medieval Jewish texts condemns the practice of medicine as an affront to God’s sovereignty and a demonstration of lack of faith in God’s power to dispense healing. For discussion, see Teshuvot for the Nineties, no. 5754.18, pp. 373-374, at notes 1-6. This position, fortunately, has been rejected by the halakhic mainstream; see ibid. at notes 7-9, as well as the above discussion.
  11. Shulchan Arukh Yore De`ah 336:1.
  12. On the attitude of Reform Judaism toward science and its procedures, see our responsum 5759.10, “Compulsory Immunization,” section 3, “A Note on Scientific Evidence.”
  13. This is true even though many medical research studies “fail”, that is, they do not yield the positive results toward new discoveries and therapies for which those who conduct the studies may have hoped. In fact, such “failures” are not failures at all. If medicine is a science, it is an experimental science, and fundamental to the concept of experimentation is the notion that some experiments will fail to confirm or will disprove particular hypotheses. This “failure,” no less than “success,” is therefore an integral part of the procedures of science.
  14. “We may do anything in order to heal disease, provided that we do not violate thereby the prohibitions against idolatry, sexual immorality, or murder”; BT Pesachim 25a-b; Yad, Yesodei Hatorah 5:6. “Sexual immorality” is traditionally identified with the list prohibited acts of intercourse in Leviticus 18.
  15. “One must submit to death rather than violate this prohibition”; BT Sanhedrin 74a-b.
  16. See Teshuvot for the Nineties, no. 5755.11, pp. 381-389.
  17. M. Nidah 5:3; Yad, Rotzeach 2:6.
  18. This term–“the sanctity of human life”–is not native to the Jewish tradition. We do not find its probable Hebrew equivalent, kedushat hachayim, in the Talmudic or halakhic sources. On the other hand, it reflects the conviction, most certainly present throughout Jewish thought, that human life possesses supreme value and is therefore inviolate: human life may never be taken or destroyed, save for those circumstances under which the Torah permits or mandates that outcome. One major expression of this commitment is the notion that one’s life is not one’s personal property, to dispose of as one wishes; rather, human life belongs to God, to Whom we are obliged to render an account for the way in which we have used it. Thus, writes Maimonides, the beit din is not permitted to accept a ransom from a murderer in order to spare him from execution, “for the life of the victim is not the property of the avenger (or of the court) but of the Holy One” (Yad, Rotzeach 1:4). In a similar vein, under Jewish law we cannot execute a wrongdoer on the evidence of his own confession. The reason for this, explains one scholar, is that “the life of the human being is not his own property but the property of God, Who said ‘all lives are mine’ (Ezekiel 18:4). Therefore, a person’s own confession has no power to dispose of that which does not belong to him” (Commentary of R. David ibn Zimra to Yad, Sanhedrin 18:6). This insight is applied in contemporary halakhic writing to the issue of suicide: Jewish law cannot abide the act of suicide (and indeed presumes that the one who takes his own life has acted under supreme duress) because the human being has no right to dispose of his own life–the possession of God–in this manner (R. Ovadyah Yosef, Resp. Yabi`a Omer 8, Orach Chayim 37, sec. 5). And, in fact, some present-day Orthodox writers do use the term kedushat hachayim or “sanctity of life” as a way of expressing these ideas; see Piskey Din Rabani’im 1, p. 164, and J. David Bleich in Fred Rosner and J. David Bleich, eds., Jewish Bioethics (Brooklyn: Hebrew Publishing Co., 1985), 273. We think, therefore, that the term “sanctity” conveys an accurate description of the Jewish belief that life possesses inestimable value and must be protected as though it belongs to the God Who created it.
  19. M. Ohalot 7:6. Some texts, including the printed version of BT Sanhedrin 72b and Rashi ad loc., read rosho (“its head”) in place of rubo (“the major part of it”).
  20. Yad, Rotzeach 1:9. On the law of the rodef, which the Rabbis derive from Leviticus 19:16 (“do not stand idly by the blood of your fellow”), see M. Sanhedrin 8:7 and BT Sanhedrin 73a.
  21. BT Sanhedrin 72b, s.v. yatza rosho.
  22. A point we have made in Teshuvot for the Nineties, no. 5755.13, pp. 171-176. This conclusion is shared by the Sefer Me’irat Einayim, Choshen Mishpat, no. 8; Tiferet Yisrael to M. Ohalot 7:6; Chidushey R. Akiva Eiger, M. Ohalot 7:6; and Arukh Hashulchan, Choshen Mishpat 425, no. 7. Rashi’s is the better interpretation because it fits with the Mishnah’s use of the word nefesh to describe the infant upon its emergence from the womb and not prior to that point; clearly, the fetus in utero is not a nefesh. Rambam’s rodef explanation is difficult: if it is permissible to destroy the fetus because its birth endangers the mother’s life, why are we no longer permitted to destroy it when its head or major part has emerged from the womb? Does it not continue to endanger her life? Rather, the distinction must be based upon a difference in status between fetus and mother. So long as it is in utero, the fetus is not a full legal person; hence, in a conflict between fetus and mother, the latter, who is a nefesh, takes precedence (“her life comes before its life”). Once it has emerged, the fetus becomes a nefesh–i.e., a day-old infant, a full legal person–and has a claim to life equal to that of the mother.
  23. See Exodus 21:22 and Sefer Me’irat Einayim, Choshen Mishpat, no. 8. M. Nidah 5:3 its Talmudic commentary at BT Nidah 44b (on Lev. 24:17) establish that “murder” applies only to the killing of a nefesh, i.e., the day-old infant and not the fetus; see Torah Temimah to Lev. 24:17, no. 47.
  24. See Teshuvot for the Nineties, no. 5755.13, pp. 171-176, which discusses the line of halakhic rulings (beginning with R. Moshe Trani, d. 1639, in Resp. Maharit, no. 99) that permit abortions for purposes of the mother’s “health” or “need,” i.e., in cases that fall short of mortal danger to her. All these rulings base their legal reasoning upon Rashi’s interpretation of M. Ohalot 7:6: the fetus is not a nefesh and thus may be sacrificed on behalf of its mother’s overriding need. In Maimonides’ view, by contrast, the only warrant for abortion would seem to be the necessity of the procedure to save the mother’s life.
  25. See A.S. Avraham, Nishmat Avraham 3, 220-222, for a summary of views. Most Orthodox poskim during the preceding century and more have taken the position that abortion is forbidden de’oraita, as a matter of Torah law. Among these is R. Issar Yehudah Unterman, Resp. Sehevet Miyehudah 1:29, who defines feticide as an “appurtenance” (avizraiya) of murder, that is, as murder in all but name. Others, however, see the prohibition as derabanan, based upon Rabbinic law; see, for example, R. Ben Zion Ouziel, Resp. Mishpetei Ouziel, Choshen Mishpat 46.
  26. See above in text and notes 20-24. Those authorities who follow Maimonides’ line of reasoning tend to restrict abortion to cases in which the mother’s life is endangered by the birth of the fetus, defined as a rodef. Those who follow Rashi, as we have seen, are more likely to permit abortion in cases where the danger to the mother is less than mortal.
  27. This is a complicated yet vitally important point of halakhah. The Talmud (BT Arakhin 7a-b) reports in the name of Shmuel that when a woman dies during labor on Shabbat a knife may be carried through the public thoroughfare (an otherwise prohibited act) in order that we may use it to cut open her womb and save the fetus. This statement is cited as halakhah by Rambam (Yad, Shabbat 2:15) and the Shulchan Arukh (Orach Chayim 330:5). The 8th-century Geonic work Halakhot Gedolot extends this provision to earlier stages of the pregnancy: “It is proper to allow a pregnant woman to eat on Yom Kippur if we know that she might miscarry if she does not eat” (Halakhot Gedolot, ed. Hildesheimer, 319; Venice ed., 31c). Nachmanides writes that this permit to violate the Yom Kippur prohibitions applies when the fetus, and not necessarily the mother, is endangered by fasting. “Even though the laws of pikuach nefesh do not in principle apply to the fetus [for the fetus is not a nefesh at all], we set aside the laws of Shabbat and Yom Kippur in order that it may survive to perform mitzvot in the future.” Ramban stresses that we are obliged to override the laws of Shabbat and Yom Kippur even on behalf of the fetus that is less than forty days old, “when it possesses no vitality (chayut) at all” (Torat Ha`adam, ed. H.D. Chavel, 28-29). It should be noted that not all rishonim agree with Ramban’s interpretation of the Halakhot Gedolot. R. Nisim Gerondi (Ran) declares: “these deductions are unnecessary. There is no case of danger to the fetus that is not also a case of danger to the mother” (Commentary of Ran to Alfasi, Yoma, fol. 3b). In other words, we set aside the laws of Shabbat and Yom Kippur not on behalf of the fetus (which is not a nefesh) but on behalf of the mother.
  28. BT Yoma 85b and Shabbat 151b, on the verse “the Israelites shall keep the Sabbath…throughout their generations as an everlasting covenant” (Exodus 31:16). The Talmudic references apply this midrash to persons (i.e., nefashot) and not to a fetus in utero. The extension of the rule “we violate one Sabbath on its behalf” is Ramban’s innovation; see Torat Ha`adam, 29.
  29. Contemporary American Reform Responsa, no. 16, p. 27.
  30. Teshuvot for the Nineties, no. 5755.13; Contemporary American Reform Responsa, no. 16; American Reform Responsa, no. 171.
  31. Teshuvot for the Nineties, no. 5755.13, end.
  32. American Reform Responsa, no. 82; Rabbi’s Manual (New York: CCAR, 1987), 247.
  33. BT Yevamot 69b. We should note that this designation is made by the halakhah in accordance with its own categories and frames of reference. It is not a scientific designation, i.e., it is not based upon scientific observation as we understand that term today.
  34. See, for example, ibid. and Yad, Terumot 8:3. The halakhah holds that the daughter of a priest (a bat kohen) who marries a non-priest forfeits her right to eat of the priestly terumah one she becomes pregnant with her husband’s child. The question is raised: why do we not forbid her to eat the terumah from the time of the marriage, on the grounds that she might be pregnant? The answer is that the law ignores the first forty days of the pregnancy, when the fetus is but “mere water” and lacks legal (if not physical) substance.
  1. R. Waldenberg’s quotation is from his Resp. Tzitz Eliezer 7:48, ch. 1 (pp. 190-191). See also R. Ya`akov Emden, Resp. Chavat Ya’ir, no. 31; R. Chaim Ozer Grodzinsky, Resp. Achiezer 3:65 (end); and R. Yechiel Ya`akov Weinberg, Resp. Seridey Esh 3:127 (p. 341).
  2. Some poskim, in fact, reject the notion that the law concerning abortion is more lenient when the fetus is not yet forty days old. See R. Isser Y. Unterman (No`am 6, 1-11) and R. Moshe Feinstein, Resp. Igerot Moshe, Choshen Mishpat 2:69.
  3. Ramban (Torat Ha`adam, ed. H.D. Chavel, 29) makes this very point.
  4. Resp. Shevet Halevy 5:47.
  5. Wasner notes that the permit to violate Shabbat for the less-than-fortieth-day fetus is “according to the opinion of the Halakhot Gedolot”; he does not indicate whether he accepts that opinion as halakhicly authoritative.
  6. R. Chaim David Halevy, Sefer Assia 8 (1995), 3-4, and R. Mordekhai Eliahu, Techumin 11 (1991), 272-273. The latter writes explicitly that it is forbidden to destroy embryos that are intended for implantation; we may discard only those embryos that will not be implanted and therefore have no possibility of further development.
  7. See our responsum 5757.2, “In Vitro Fertilization and the Status of the Embryo.”
  8. But see our responsum 5758.3, “In Vitro Fertilization and the Mitzvah of Childbearing.” Although we do see procreation as a “mitzvah” and although those who desire children are certainly encouraged to make use of new techniques and procedures such as IVF, they are under no obligation to do so.
  9. CCAR Responsum 5757.2, section 4.
  10. See the testimony of Rabbi Elliot Dorff and Rabbi Moshe Dovid Tendler in National Bioethics Advisory Commission, Ethical Issues in Human Stem Cell Research: Volume Three, Religious Perspectives (June, 2000, Rockville MD), available at .
  11. Bruce M. Carlson, Patten’s Foundations of Embryology (New York: McGraw-Hill, 1996), 3.
  12. It is crucial to note that the reason for the embryo’s inferior status is the very fact that it lacks the essential quality–implantation in the womb–that would allow us to view it as a “person in becoming” (see the responsum of R. Wasner. note 38). Let us consider, however, the following hypothetical. Suppose it were possible for scientists to develop the fertilized egg for a full nine months in a laboratory environment, without having to implant it into a womb at all. This embryonic human life would skip the fetal stage entirely. Would we say then that it lacks even the minimal status possessed by the fetus? We do not have to address ourselves to hypothetical situations, of course. But the very fact that such a prospect is imaginable suggests to us that we should take great care before dismissing the human embryo as something not worthy of a significant level of moral concern.

 

 

 

If needed, please consult Abbreviations used in CCAR Responsa.

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