CCAR RESPONSA

American Reform Responsa

63. Adoption and Adopted Children

(1978)

QUESTION: What is the status of adoption and adopted children in Judaism? What steps are necessary for a conversion if such children are Gentile? If the children are converted, should they bear the name ben Avraham or bat Sarah? Should there be a special ritual for adoptions either for the naming of such children or for bringing these children into the covenant of Judaism? (Rabbi Michael M. Remson, Family Life Committee)

ANSWER: There is nothing in the legal section of the Talmud about adoption, although the Talmud does present agadot which discuss the status of Moses's relationship to Pharaoh's daughter and Naomi's to her grandchild (Talmud, Meg. 13a and San. l9b). These discussions led to the statement, "Whoever rears an orphan in his house is considered as if he had begotten that child." In addition, on the same page we find the statement, "He who teaches his neighbor's son Torah, is as if he had begotten him." Exodus Rabba 45 interpreted the verse of Isaiah 64:8, "You, O God, are our Father," as meaning that "Anyone who raised a child is called father, not the one who has begotten it." These are not halachic statements, but they indicate a climate of opinion which definitely favored adoption.

The problem with adoption is knowing the biological background of the adoptive child. If there is conclusive evidence that the child was the offspring of parents who could, under Jewish marriage law, have contracted a lawful marriage, then the child is deemed Jewish and there is no bar to adoption or any later participation in Jewish life, except that the child could not share in the traditional privileges of the Aaronite priesthood. Further, if the child is the child of a Jewish mother and a non-Jewish father, no bar to the adoption in terms of Jewish status of the child obtains. Even if the child were a foundling (an extremely rare situation today as far as Jewish infants are concerned) and the circumstances of the discovery point to a desire on the part of the natural parent(s) to insure that the baby would be found and taken in by a family to be raised, the Jewish presumption is that such a child may rightfully be considered Jewish.

Situations of doubt have always been rare, as Jewish law did everything possible to avoid them. For example, in the case of an unmarried Jewish mother, her statement about paternity was accepted; if she could not establish paternity, then the child was presumed kosher (Mishna, Kid. 4.2; Talmud, Kid. 73a; Yad, Hil. Isurei Bi-a 15.30, 31; Shulchan Aruch, Even Ha-ezer 4.30, 32). The sources make a distinction between two categories of children of whom nothing was known: Shetuki--children about whose paternity the mother was unwilling to say anything, and Asufi--foundlings with nothing known about mother or father. Some doubt was expressed about the acceptability of foundlings as suspicion of Mamzerut (a child born of an adulterous or incestuous relationship) existed, but the Talmud (Kid. 73a) surrounded this category with so many hedges that it virtually ceased to exist. In other words, most children would fall into the former category.

A considerable amount of modern discussion of these matters has been undertaken by Ezekiel Landau (Noda BiYehuda, vol. I, Even Ha-ezer #7), and Benjamin Weiss (Even Yekara 2.5). Both of these individuals discussed whether children with an unmarried Jewish mother and with doubtful paternity could be accepted. They concluded that the children were welcome even if the father was not Jewish. We can see from both ancient and more recent authorities that the main obstacle standing in the way of possible objection of Jewish children was successfully removed. Once they had entered the household, they were to be considered completely like children of the house and in no way different from natural children. This is in accordance with the Agadic statement previously mentioned, and which was re-emphasized by Meir of Rothenburg in Responsum #242, in which he dealt with a question about a note (Shetar) and an adopted orphan raised in the household. The orphan was considered legally part of the household. This thought was then embodied in the Jewish legal tradition (Isserles to Shulchan Aruch, Choshen Mishpat 42.15). It is reasonable today to rely on reputable adoption agents or agencies that should be in a position to provide information on the adoptive child's origin, not necessarily with specific names, etc., but with an accurate statement on the background of the anonymous (to the adoptive parents) natural parents.

If a child beyond the age of infancy is adopted-- as, for instance, in the case of a stepfather adopting the child of his wife, where the child was born to the wife's first marriage--there is no problem whatsoever in clarifying the child's origins. If a couple adopts an older child who may remember a mother or a father, there is an obligation on the part of the adoptive parents to find out the child's origins in order to be forewarned of any possible problem in the child's future full participation in Jewish life, particularly in the area of marriage. All adopted children should be told at an appropriate time that they have been adopted.

Lastly, a child who is definitely non-Jewish may, indeed, be adopted and converted. There is no question at all about the acceptability of non-Jewish children as candidates for adoption. Their background does not matter; even people once prohibited entry into the family of Israel, such as the Ammonites, Moabites, etc. (Deut. 23:4), were no longer forbidden by Mishnaic times (Tosefta, Kid. 5.9; Yad, Isurei Bi-a 12.25). In all such cases, we must deal with the process of conversion to Judaism (Mishna, Ket. 4.3; Ket. iia). It should be pointed out that such conversion, while full and complete ritually and legally, obligates the adoptive parents to provide Jewish training, etc., for the child. When the child reaches the age of Bar/Bat Mitzvah, there is a traditional mechanism by which the converted child could reject Judaism without prejudice (Sh.A., Yoreh De-a 268.7). In earlier days, a formal process of rejection was required because of the rigidity of Jewish-Gentile relationships. Nowadays, no such rejection mechanism is necessary, because belonging to the Jewish people and faith are essentially voluntary. It is important, however, that the adopted child be informed at an opportune time that he/she was adopted. In other words, the Jewishness of the child matures along with the child himself. Theoretically, the child could reject Judaism upon becoming an adult, but that matter is moot for us, and the conversion matures along with the child and becomes irrevocable. This places a special duty upon adoptive parents to see to it that an adopted child receives an adequate Jewish education so that the child's sense of being Jewish would not ever come into question.

It is clear that nothing formal should be done in this regard until permanent jurisdiction over the child has been obtained. This is proper from two points of view; first of all, it would be morally wrong, and probably illegal, to convert a child to Judaism as long as the possibility of having to return it to its non-Jewish parents remains; if that should occur, the child would be raised as a non-Jew. Secondly, it avoids the problem of public embarrassment if a child so placed has to be returned to its natural parent(s). Although this situation rarely arises, it does occur and that painful experience should not be aggravated.

When such a child has been legally adopted, then he or she should be named in the synagogue. The name to be provided would be ben- or bat-, and then the name of the adopting parents. Thenceforth, those parents are fully his/her parents and that should be indicated through the name. This should be stressed rather than the fact of conversion. The designations ben Avraham or bat Sarah were created for the purpose of providing a full name to individuals whose parents remained non-Jews. They also helped the convert, as this was a constant reminder of conversion to Judaism from another religion. In our case, both adoptive parents are Jewish and the child has never known any other religion, so it needs no reminder nor a special parental name (Moshe Feinstein, Igerot Mosheh, Yoreh De-a 161). Linking the Hebrew name of the child with his/her parents will provide an additional firm bond between them, which may be of special significance during the teenage years when this child will become Bar or Bat Mitzvah and question his or her real origin.

The naming of such a child should occur in the same manner as with any other child. This procedure should also be followed if the adopted child is older and may be capable of understanding the process. In most Reform congregations this would be considered sufficient ritual conversion for girls and also for a large number of boys. This act, along with Jewish education, would bring the child into the covenant of Judaism in the same manner as any natural child.

In the case of boys who are not circumcised, there should be a circumcision done precisely in the same manner and with the same ritual as a circumcision for natural children. It would, of course, usually occur at a more advanced age. If a child was already circumcised, some parents may want to undertake tipat dam, but that remains optional. In addition, some more traditional parents may also want to have the adopted boy or girl undergo Tevila. It is quite clear from tradition that if such a child at any later time undergoes Tevila, even though not specifically for the purpose of conversion, it would be considered the same as if he had undergone it for that purpose (Shulchan Aruch, Yoreh De-a, 268.3). The Talmud debated the need for both circumcision and ritual bath. R. Eliezer (Talmud, Yev. 46a) indicated that a proselyte who was circumcised and did not take the ritual bath, was considered fully Jewish. The decision went against him. Both orthodox and Conservative rabbis in our day require it. A good case for having Tevila optional can be made. Tevila should, therefore, be considered optional, as it is with adult converts nowadays. In some cities Tevila has become frequent; in many other cities it is not practiced at all.

Finally, let us turn to the possibility of a new ritual for adoption. When an adopted child enters the family, the parents will probably feel quite at ease with that child and will, from the beginning, be able to treat it as if it were a natural child. Such an attitude will develop only slowly among grandparents and other relatives, who must be shown that this child is to be considered the complete equal of a natural child. For this reason, all procedures should follow the pattern taken with natural children. This will help the acceptance of such adopted children. For this reason, we would not favor adding any new ritual for adopted children. They should be treated like any other child in every way, be brought up into the covenant, and raised as Jewish children.

Walter Jacob, Chairman

Stephen M. Passamaneck

W. Gunther Plaut

Harry A. Roth

Rav A. Soloff

Bernard Zlotowitz

See also:

S.B. Freehof, "Baptism of Child Before Adoption by Jewish Couple," Recent Reform Responsa, pp . 97ff; "Adoption of Children of Mixed Race," Current Reform Responsa, pp. 196ff; "Adoption by Cohanim," Contemporary Reform Responsa, pp.

If needed, please consult Abbreviations used in CCAR Responsa.