NAMING THE CHILD OF AN UNMARRIED MOTHER

QUESTION:

An. unmarried mother desires that her child be given the usual type of Hebrew name: his personal name and the name of his father. However, the man whom the young woman declares to be the father denies that he is the father. Is there any way by which this child can be named in accordance with Jewish tradition with his personal name and a patronymic? (Asked by Rabbi Kenneth Segel, Pittsburgh, Pennsylvania)

ANSWER:

LET US FIRST take the extreme type of such a situation. Suppose that according to Jewish law this child is a bastard (mamzer). It need not be more than just stated that the Jewish definition of a bastard is much more liberal than that used in most legal systems. In Jewish law a child born out of wedlock is not necessarily illegitimate. Only such a child is illegitimate who is born of a relationship which cannot be legitimatized; as for example, the child of a married woman from a man not her husband. Since the woman in the case before us is unmarried, her child cannot be deemed illegitimate for that reason. Nevertheless it may be illegitimate for another reason. If, for example, her sexual relationship had been with a close relative whom she is not permitted to marry, this child would be illegitimate even though the mother is an unmarried woman. Therefore let us for the sake of completeness consider the extreme case, namely, that this child is in Jewish law illegitimate. Should it be named at all? Should any religious ceremony be performed in his behalf (assuming that it is a male child)? The law in Deuteronomy (23:3) states that a mamzer shall not enter the community even unto ten generations. This means that he may not marry into “the community” of priests, Levites, or Israelites (Kahal Kohanim, etc.). He may, of course, marry into the community of proselytes (Kahal Gerim) or freed servants, and such a marriage would be a legal and sacred Jewish marriage. In fact, the law recommends such marriages as a step in the purification of a mamzer. But other than the restriction placed on a mamzer, namely, not to marry into the three communities of Cohen, Levite and Israel, he is considered to be a Jew in every respect. For example, if the eighth day of his birth is on the Sabbath, he may be circumcized on the Sabbath. See Yore Deah 265:4 and also especially Jacob Reischer in his Shevus Yaacov, II, 82. He may be called up to the Torah. See Orah Hayyim 282:3, end of the note of Isserles. In other words, he is a Jew in every respect except for the above-mentioned marriage restriction.

In fact, the great Rhineland authority Maharil (Jacob Moelln of Mainz, 1367-1427) who may well be described as the prime source of our Ashkenazic customs, had the case of the circumcision of a mamzer which he had conducted in the vestibule of the synagogue with full rites except for the final blessing, which would imply that such should increase in Israel. So one may say in a summary that even if this child is illegitimate (a mamzer) , the father being one of the forbidden blood relatives, even so he should be considered Jewish in every way and no traditional ritual should be denied him.

But this child is not to be considered a mamzer. Since the mother claims that a certain man is the father and since the man denies it, we may say that the child’s paternity is not really known. In that case, the child belongs to the class called shetuki, “the silence,” i.e., those of whom we cannot say who is the father. In such cases the law is according to Abba Saul (M. Kiddushin, IV, 1 and 2 and b. Kiddushin 74a) who says that if the child is a shetuki the mother is asked about the father of the child. If she says that the father was one whom she would have been permitted to marry (L’kosher Nivalti) i.e., not one too close in blood kin-ship and not a non-Jew, then she is to be believed and the child is not a mamzer.

We may assume, therefore, in accordance with the mother’s statement that this is not the child of a father who is a forbidden blood relative and, therefore, this child is in every sense legitimate in the eyes of Jewish law. In the same section of the Minhage Maharil (Hil. Milah) in which Maharil spoke of the ritual circumcision of a mamzer, he also discusses the circumcision of a child born out of wedlock but legitimate (i.e., neither of a married woman by a man not her husband, nor from forbidden blood relatives). He speaks here of precisely the problem which is asked here, but unfortunately he does not give us a solution. He states, first of all, that he rebuked the mohel who wanted to leave out part of the Psalm, a praise to God for this child, and he made the mohel repeat the full ritual. But when it came to naming the child, the following difficulty arose (exactly as in the case of the question asked here). The man whom the woman said was the father, denied that he was. Therefore Maharil did not give the child that patronymic, since he said that to do so might shame an innocent man. Maharil does not then say what patronymic he did give the child. This is the essential point of our question.

But have we the right to choose any name we prefer? As a matter of fact, there is considerable latitude in the choice of a patronymic. The only exception to this freedom of choice concerns the divorce document (the get). In a get the precise naming is required, even to the embarrassing appellation, for example, of writing “Benjamin, the son of the apostate.” But other than in a get there is, indeed, a wide latitude in the choice of a patronymic. A man may change his patronymic, and certainly the spelling of it, after his father’s death; but if his father is still alive, he may do so only with his father’s consent (cf. the references in Moses Feinstein, Igros Moshe, Even Hoezer #22, p. 340). The specific case with which Moses Feinstein deals here is that of Miriam, a learned Jewess, a Hebraist, whose father was a Christian. She selected for herself the patronymic “Joshua” and signed herself in her Hebrew correspondence, “Miriam, daughter of Joshua.” Feinstein decides that if that name has become current, it is actually now her name (except, of course, if it happens that a divorce document needs to be written for her).

Since, then, we are indeed free to choose a patronymic for this child, which name should we choose? A simple solution presents itself at once but, really, it is too simple and should be rejected. There has been established a custom that when special prayers are given in behalf of the sick or the otherwise unfortunate, that the person in behalf of whom the prayer is given is named, not by his patronymic but by his matronymic; thus, instead of “Jacob, the son of Moses,” it would be “Jacob, the son of Sarah.” The reason for this is the petitional sentence in Psalm 116:16, “I am Thy servant, the son of Thy handmaiden.” In other words, this child could be named, “Jacob, the son of Sarah” (or whatever his mother’s name is). The Talmud speaks of a man named “Mari the son of Rachel” (Baba Bathra 129a cf. Rashi). See also Ezekiel Landau to Even Hoezer 129:10 (Dagul Mirvava) . But this simple solution must be rejected, because whenever this boy would be called up to the Torah, if he were called up in his mother’s name instead of his father’s, it would brand him for the rest of his life as having been born out of wedlock.

There is a better and a more considerate guidance in the Talmudic literature in this situation. There are a number of instances given in which children were named after people who were not their relatives. For example, in Shabbas 134a, we are told of a woman who lost two children because of the circumcision, and Nathan Habavli gave the mother advice to wait until the child was older, and her third child and her subsequent children survived the circumcision safely. Thereupon, the children were named “Nathan” after him, although he was no relative. So it was with the children who were named after Rabbi Eliezer, who solved a ritual question (as to blood) for a large number of women enquirers, and the children born were named for him {Baba Metziah 84b). Of course these children were given the name of the Rabbis, Nathan and Eliezer, as their personal name; but in an analogous case of Rabbi Yochanan (Rosh Hashonah 18a) we are told that the children were called “the family” of Rabbi Yochanan. So it is possible, on the basis of these precedents, to select a name that has no direct relationship to the paternity or the imputed paternity of the child. But is there any specific guidance as to which name to adopt as the patronymic?

The Talmud, in Sanhedrin 19b, refers to the fact that certain children were described as the children of Saul’s daughter Michal, when actually they were the children of his other daughter, Merab. The Talmud explains this fact by saying that Merab bore those children but Michal raised them, and then the Talmud gives the following dictum: Whoever raises an orphan in his house may be considered its parent. Therefore if this child is given out for adoption (and since, anyhow, an adopted child is given the family name of the adopting family) he can be given the Hebrew patronymic of the head of the family which adopts him. If it is a fairly common Hebrew name, it would not necessarily point to him as the actual natural father. But if the name is unusual enough to point to him as such, the child can be named after the adoptive grandfather. Or, following the precedent of the various rabbis mentioned in the Talmud, the Hebrew name of any scholar greatly admired may be adopted; or, as we do with proselytes, who are called “the children of Abraham our father,” the name of Abraham might be adopted as a patronymic.

Also there is another solution: When a man’s father is an apostate whose name we will not call out when the son is called to the Torah, the son shall not be called up by his name alone, for that would shame him. He is called up as the son of his grandfather (see Isserles, Orah Hayyim 13 9:3; Terumas Ha-deshen # 21) . In Orah Hayyim 139:3, at the end of note, Isserles says a shetuki (one whose father is unknown) is called to the Torah by his own name, as the son of his mother’s father. So, too, Ephraim Margolis in his Shaarey Ephraim 1:27, suggests that a shetuki, when called to the Torah, be called by the name of his mother’s father.

The essence of the matter is this: Even if, in the strictly delimited sense of the Hebrew definition, the child is actually illegitimate, even so, no traditional rite may be refused to him. But since this child is not illegitimate, but just the child of an unmarried mother, he is entitled, of course, to every ritual of circumcision and naming, and the name is to be selected according to the various alternatives mentioned above.