(Vol. LXVI, 1956, pp. 107-110)
QUESTION: Certain religious groups endeavor to have legislation passed requiring that children should not be given for adoption except to parents of the same religion as the natural parent or parents of the child. Should we Jews favor such legislation? In general, what is our attitude toward a child who is to be adopted? What ritual must it go through? What is its status?
ANSWER: What is the status of a non-Jewish child offered for adoption in the eyes of Jewish law? It should be clear at the outset that the racial descent of the child has absolutely no significance in Jewish law. It is true that the Bible (Deut. 23:4) mentions Ammonites, Moabites, Egyptians, etc., who may not enter into the Jewish community. However, this law only applied to male members and not to female members, as the Talmud makes clear (B. Yevamot 76b-77a). Furthermore, all these racial distinctions no longer have any bearing at all. Rabbi Akiva stated in Tosefta Kiddushin V.4 that the Assyrian king Sennacherib, through his conquests, "mixed up all the races," so that no race is now recognizable for specific prohibition. This statement of Akiva is embodied into Jewish law. Maimonides in Yad, Hil. Isurei Bi-a XII.25 says (basing his opinion on Akiva) that now no races are distinguishable, and therefore, all may enter the Jewish community. Thus, it is clear that race is not involved in the question of adoption, according to Jewish law.
But another question is involved that must be carefully discussed. The same passage in Scripture which discusses the inadmissibility into the community of Moabites, Ammonites, etc. (Deut. 23:3), also says that a Mamzer may not enter into the community. Since many of these children are born out of wedlock, what we must be concerned with here is the child's personal status at birth. There is a considerable number of laws about the legal status of parentless children of doubtful parentage. These laws are basically concerned with the question of bastardy (Mamzerut), since a Mamzer is forbidden to marry into the Jewish family. Of course, it must be understood at the outset that the term Mamzer is much more liberally understood in Jewish law than the term "bastard" in modern languages and law. A child born out of wedlock is not necessarily a Mamzer in Jewish law. Only a child born out of a connection which cannot be legitimized is a Mamzer, e.g., the child of a married woman and a man not her husband, or the child of the forbidden degrees of relationship. The question of Mamzerut in Jewish law applies only to a Jewish mother, because a Gentile child, if converted, becomes a kosher Jew. But with a Jewish mother--only if it is absolutely sure that the child is from a Jew whom she could not possibly marry (or if there is an overwhelming presumption that this is so), that child is a Mamzer--and is forbidden. When we do not know the parents--as is generally the case nowadays--we presume that the child is Gentile and, therefore, admissible; and even if we know that the mother is Jewish, the general presumption is that the child is kosher.
The law of the status of such children of doubtful parentage is given first in the Mishna briefly (Kiddushin IV.2), then in greater detail in the Talmud (B. Kiddushin 73a), then in the various codes (Yad, Hilchot Bi-a XV.30, 31; Shulchan Aruch, Even Ha-ezer, 4.31; 32). There are two elaborate responsa on the question, one by Ezekiel Landau (Noda BiYehuda I, Even Ha-ezer 7), and Benjamin Weiss, Rabbi of Chernowitz (Even Yekara II, #5). All these sources classify the dubious children under two headings, "Shetuki" (those about whom the mother is silent, i.e., "undescribed children"), and second, "Asufi" ("picked-up children" or foundlings). As for the Shetuki (undescribed children), if the mother--on being questioned--says that the child is the result of a relationship with someone kosher (i.e., not a forbidden degree), then she is believed and the child is kosher.
In his responsum (mentioned above), Ezekiel Landau says that although the Jewish mother died and can no longer be questioned, the overwhelming presumption is that the intercourse was not with anyone of the forbidden degrees (i.e., with no forbidden Jew), and therefore the child is kosher. Even if it were a Gentile man, the child still follows the status of the Jewish mother and is also Jewish, and, therefore, the child needs no conversion. He says further that if it is known that the child is of an unmarried woman, there is absolutely no doubt as to the child's complete acceptability. In the responsum of Weiss, the mother first claimed that the child was the result of sexual relationship with her husband, who died before the child was born, but later she admitted that it was the child of a Gentile father. In either case, since the child follows the status of the mother, and there is no weight of presumption that she had relationship with a Jew who is forbidden to her, the child is kosher.
Most of the children adopted nowadays are from unknown parents. They are, therefore, children who, if described at all under the two categories, would be described not as Shetuki, "undeclared," but as Asufi, foundlings. Since there is no parent to question in the case of an Asufi, the Talmud considers the Asufi to be a "Safek Mamzer" (a doubtful Mamzer), but even a Safek Mamzer may, according to the law of the Torah (B. Kiddushin 73a), be married into the community. But the Talmud makes so many restrictions as to the term Asufi that almost no child nowadays could be put in that derogatory category. The Talmud (in Kiddushin, loc. cit.) says that an Asufi is only such a child as has been clearly thrown away to die (the presumption being that the child is a Mamzer and that the mother is afraid to have anything to do with it). But any foundling who shows evidence of care (by his dress, washing, or anointing, or if it is put so that someone can pick it up) is not an Asufi at all, and is presumably kosher. Since, nowadays, however, the majority of the people in the cities are Gentile, such a child is presumably Gentile, and, therefore, must be converted. This is, of course, not the case with the child of a mother who is known to be a Jewess. Such a child does not need to be converted.
Of course, an infant should be received into the Jewish community. Does it need conversion? The Talmud(M. Ketubot IV.3 and B. Ketubot iia) speaks of the conversion of children. What process is to be followed? The Orthodox would require the ritual of the bath for all children in addition to circumcision for boys. On the question of the conversion of children (not specifically for adopted children, but in general), the CCAR came to a definite decision in my Report on Marriage and Intermarriage. There it was decided that such children need only attend our religious schools and that the Confirmation Service which ends the school course be deemed sufficient as a ceremony of conversion. Naturally, an adopted boy would be circumcised. Generally, most boys are circumcised now. In that case, a more observant family might want to take the drop of Blood of Covenant.
The final question is this: What is the status of an adopted child in a Jewish family? On this question there are, first of all, a number of Agadic sayings which, while not strictly legal, embody the spirit of Jewish life with regard to adopted children. The Talmud says (B. Sanhedrin 19b) as follows: "Whoever raises an orphan in his house, Scripture considers him as if he were his physical parent." On the same page there is an analogous statement: "He who teaches a child the Torah is as if he were his parent." Exodus Rabba XLVI.5 is an elaboration of the verse in Isaiah, "Thou, O God, art our Father." The Midrash says, "Whoever raises the child is called father, not the one who begets it."
But in addition, there is clear halachic evidence concerning the full legal status of an adopted child. Meir of Rothenburg, in his responsum (edition Lemberg, #242; and also found in Teshuvot Maimoniyot, at the end of Mishpatim, #48) discusses the following question: If a man writes on a Shetar (a note) the name of his wife's son, whom he has raised and to whom he refers as "my son," is the note legal? Meir of Rothenburg says that it is absolutely legal, and adds, as a general principle: "Since he raises an orphan in his house, the orphan is considered his son, and he may refer to the boy as 'my son' and the son may refer to the parents as 'father' and 'mother,' and there is no legal objection to that nomenclature." This statement is further embodied in the law (Shulchan Aruch, Choshen Mishpat 42.15). Isserles agrees that such notes are legal. There is some questioning of the right of such people to call each other "father" and "son" in the special case of vows. That is to say, if a man makes a vow that he will accept no benefits from his sons, and he has natural sons as well as an adopted son--does that vow prevent him also from accepting benefits from his adopted son? This question is discussed by Jacob Emden in his Responsum #165. He adds some doubts as to the adopted son being always referred to as "son," in such specific cases, but in general, he accepts it. See fuller discussion of this question by Eleazar Wildenberg in Hapardes 23:3, p. 13.
So it is clear that race or religion of parents has no bearing with us. A child who is adopted is accepted in Judaism according to the practices of the branch of Judaism to which the adopting family belongs. Such a child is absolutely and completely a member of the family and a full child of the parents.
Solomon B. Freehof
If needed, please consult Abbreviations used in CCAR Responsa.