CCAR RESPONSA
American Reform Responsa
61. Status of Children of Doubtful Religious Background
(Vol. LXX, 1960, pp. 95-99) The committee has received during the past year a number of questions which involve Jewish converts to Christianity, and some questions with regard to the reversion to a non-Jewish faith on the part of converts to Judaism. A question arose about the status in Judaism of Christian children adopted and converted to Judaism, and then–because of physical or mental defects– the adoption is canceled and the child is returned to the agency. What is the status of such a child? The questions involving apostasy may have come up generally in the following circumstances. A child is of an immigrant family in which there is a Gentile father and a Jewish mother, the family having converted to Christianity in Germany. Now a young girl from this mixed family wants to marry a Jew. May she be married to a Jew without conversion? Analogous to it is the question of a child of a Jewish mother adopted and raised by a Christian family as a Christian; can this child be married to a Jew without conversion? Does the fact that this child was not raised by her Jewish mother make a difference? As for a Christian adopted and converted to Judaism, and then–because of physical or mental defects–returned to the agency, is this child to be deemed to have remained a Jew? May he or she, for example, when grown up, be married to a Jew without question, without further reconversion? These are all practical questions, and therefore it is important not only that we analyze the attitude of Jewish law in the past to these individuals, but also that we come to a practical conclusion for ourselves as to how we should deal with the problems mentioned above. It is to be noted at the outset that these problems are not new. To some degree they are dealt with in the Talmud, but they come to more complete discussion in the many responsa dealing with the Marranos, who for centuries kept on escaping from Spain and Portugal and appearing in Jewish communities. A decision had to be made as to the status of these fugitives. Should they be reconverted to Judaism, or was the conversion unnecessary on the ground that they were still Jews? The question came up likewise in Ashkenazic Jewry due to the waves of compulsory conversion in the wake of the Crusades and later persecutions. It would be well, therefore, to take the law in its general principles from the beginning. The Talmud (Yevamot 45b) says that a child born of a Gentile and a Jewess is kosher. To which Rashi comments: “Since his mother is Jewish, he is counted as one of our brothers.” The Talmud (Kiddushin 68b), in discussing the verse in Deuteronomy 7:4 (“He will wean your son away from following Me”), indicates that “he” means the Gentile father of the son, who will mislead your son away, etc. Therefore, the Talmud says, this indicates that your son born of an Israelite woman is truly your son, but a son born of a Gentile woman is her son. So is the principle embodied in the codes: in the Tur, Even Ha-ezer 4, it says that the son of any Gentile man and a Jewish woman is kosher to marry a Jew; so it is also in the Shulchan Aruch, Even Ha-ezer 4.5 and 19. There is some question whether a child in such a mixed marriage may marry a Kohen, but most authorities agree that she may do so. Therefore, there is no question that the child of a Jewish mother is fully a Jew and may be married to a Jew. Now–theoretically speaking–if this daughter of a mixed marriage also married a Gentile, her child is a child of a Jewish mother and is also Jewish. For how many generations would this Jew’s status reach? While, of course, this is a theoretical question, it is interesting to note that Solomon, the son of Simon Duran of Algiers (Rashbash, #89) says that it applies ad sof haolam, forever. The statement of Duran is as follows: “One whose mother is Jewish, even for many generations, even if the father is Gentile, the child is Jewish, even to the end of the world, ad sof ha-olam.” But such a person has been raised as a Christian: either (as in the case concerning which the committee was specifically asked) the child was herself converted, or (as in the case of the Marranos) the child was raised in a Christian environment from the very beginning. Granted that the child is Jewish by birth, must it not be in some formal way restored to its Jewish status by some ceremony akin to conversion? This is discussed in the law, and most of the discussion goes back to the Talmud in Bechorot 31a and Avoda Zara 7a. There the discussion deals specifically with the relationship between the Am Ha-arets (meaning, in the Talmudic sense, one who is not to be trusted to observe the laws of purity and to give tithes and heave-offering properly) and the Chaverim (those who are careful to keep all the laws mentioned). The Talmud says that the Am Ha-arets, before he can be accepted as trustworthy, must make a formal promise of Chaverut, that is, to be one of the Chaverim who are careful to observe the law. The same term is used in the discussion of apostates who want to return; it is asked of the repentant apostates to take upon themselves the promise of Chaverut, that is, to obey Jewish law. As to whether any formal ceremony other than such a promise is to be required of them, there is a general agreement that the ritual bath is not really required by strict law (mideoraita), but some would require the ritual bath as a rabbinical caution (miderabanan). Thus, it is decided by Moses Isserles in Yoreh De-a 268.12. However, it is noteworthy that in the discussion in the Talmud (in Bechorot), Rabbi Simon and Rabbi Joshua–speaking of the non-observant and whether we would accept their repentance–say that under all circumstances we should accept them because of the verse in Jeremiah 3:22: “Return, ye recreant children.” And the Talmud says that the law is according to this pair of lenient authorities. The status of the non-observant Jew and that of the proselyte are brought together in the Tosefta (Demai II). In the discussion on the Shulchan Aruch passage mentioned above, Elijah of Wilna quotes this lenient discussion in the Talmud as applying also to apostates who revert to Judaism. In general, the Talmud is lenient also with regard to children of Jewish birth who–unaware of their Jewish origin–are raised among non-Jews (“tinok shenishba bein hanochrim”). See the discussion in Shabbat 68b, especially with regard to their being excused since in their ignorance they violated the Sabbath. The general mood of the law with regard to all those who seek to return was to make as little fuss as possible and to interpose no hindrances. The rest of the statement of Solomon Duran as to these reverts is as follows: “The requirements of conversion do not apply to them at all. When they wish to return to Judaism, we do not have to tell them about the various commandments [as we do to Gentile converts], for they already stand sworn as part of Israel from Mount Sinai and they do not need the ritual bath for conversion.” That this is not merely a chance liberal statement is evidenced by the fact that it is quoted by Joseph Caro in his Beit Yosef (Bedek Habayit) at the end of Yoreh De-a 268, where the question is discussed. It is noteworthy, too, that Rabbenu Gershom, the Light of the Exile, speaking in the Rhineland, also says in a similar case (in fact, with regard to a Kohen) that we should be as lenient as possible and refrain carefully from reminding the apostates of their former state lest we discourage them, thereby to return in repentance (Vitry, pp. 96-97). It is clear from this point that no ritual of observance should be required of the children of a Jewish mother. To do so would indeed violate the law and imply that they were not Jews, which would be erroneous. However, the decision of Isserles that they avow Divrei Chsverut could well be accepted by us as a cautionary action. We should ask the person involved to promise to maintain a Jewish home. This, at the most, is all that is necessary. Now to the other, and somewhat related, question, i.e.: What about a child born of a Gentile mother who, in infancy, is converted to Judaism, and then–after conversion–is returned to the general agency because of some physical or mental defect? Is this child, because of the original conversion in infancy, to be deemed permanently a Jew? This may be a practical question if, when the child grows up, he or she wants to marry a Jew. In general, the law concerning an infant who is converted is different from that governing an adult who is converted to Judaism. An adult accepts Judaism of his free will after a careful explanation is made to him of all the circumstances involved in becoming a Jew. But an infant is converted without knowing what is involved. The Talmud says (Ketubot iia) that an infant may be converted by the authority of the Beit Din, not, of course, on the ground of the child’s intelligent acceptance of the conditions involved (which is impossible), but because becoming a Jew was deemed to be an advantage, and we may do a favor for a person even without his consent. Therefore, with regard to an adult convert, he cannot completely discard the allegiance which he had accepted. He simply becomes a sinful Jew, and he may still enter into Jewish marriage, just as an apostate may (see Tosefta, Demai 11.5; Yoreh De-a 268.12). This convert to Judaism who reverts to his former faith is, of course, not deemed a Jew in the full sense of the word. Just as in the case of a born Jew who apostasizes, he is, for example, not to be relied upon with regard to the various mitzvot. The wine in his possession is Gentile wine, and his bread is Gentile bread. But with regard to marriage, he has the same right as an apostate Jew. The only exception with regard to apostates in the marriage relationship concerns the Levirate marriage and Chalitsa. If, for example, a man dies and has no children, and his brother is an apostate, some few authorities ease the requirement that the widow obtain Chalitsa from this apostate. But otherwise, the apostate, whether born Jewish or having been converted as an adult, retains his Jewish status in marriage relationships (cf. Ezekiel Landau, Noda BiYehuda II, Even Ha-ezer 150). Thus, the adult convert, like a Jew, possesses what international lawyers call an “indelible allegiance,” at least with regard to marriage and divorce. However, a child who has been converted without his own intelligent consent but merely on the theory that a favor has been done him, is given the permission to renounce the conversion when he grows up. So says Rabbi Joseph in the discussion in the Talmud (Ketubot iia). This is embodied as law by Asher ben Yehiel in his Compendium on the Talmud; he adds, however, that if, when he has grown, he is known to observe Jewish law, this observance is deemed to mean consent, and then he can no longer renounce his allegiance. So it is in the Shulchan Aruch, Yoreh De-a 268.7,8. The child in question, therefore, has the right to determine whether his conversion in infancy remains valid or not. If he chooses to live a Jewish life as he grows up, he is a Jew, and if not, his conversion is void. To sum up: Those who are born of Jewish mothers and those who are converted to Judaism as adults have an indelible allegiance to Judaism with regard to marriage laws. The only real exception to this is to free a woman from the need of Chalitsa if her husband’s brother is an apostate.Solomon B. Freehof
If needed, please consult Abbreviations used in CCAR Responsa.