MARRIAGE OF A PREGNANT GIRL

QUESTION:

A Jewish girl, visiting Israel, became pregnant there. She refuses to marry the Israeli responsible for her pregnancy. Now back home in Europe, a widower who has some children of his own proposes to marry her and expresses his willingness to adopt her child. According to Jewish law, may he adopt this child? What are the delays prescribed by the laws before he can marry the girl? (From Rabbi Andre” Zaoui, Paris, France.)

ANSWER:

FIRST, LET US discuss the question of the proposed adoption of the child by the widower who wishes to marry the girl. May this man adopt the child? There is no part of Jewish law which discusses the question of adoption. The custom of adopting children which was prevalent in Rome was not prevalent in Jewish life. Therefore no law developed on the subject except some general ethical statements of the merit of a man who raises an orphan child in his house (Megillah 13a).

However, in modern times, with many Jewish childless parents adopting children whose origin is unknown or kept secret, a number of responsa have been written on the subject. Most of these responsa by Orthodox scholars oppose these adoptions, chiefly on the ground that we do not know the original status of the child. If the child is technically a mamzer, it may not become part of a Jewish community (except as a separate classification) . If the child is a Gentile, it needs conversion, etc. In the case of this child, no Orthodox objection could possibly be raised. This is a child of a Jewish mother by a Jewish father. All that the law would inquire about in this case is whether the father is of a close blood relationship to the mother, so that she could not legally marry him. But if he is not a close relative (that is, if he is someone whom she can legally marry) then the child is “kosher.” All she needs is to declare: “I had relationship with a man with whom I was eligible to marry by law” (lekasher nivalti) . She is believed, and according to the law her child is kosher enough to have priestly status if the father were a priest (see Even Ha’ezer 4:26, 27 and especially Kidushin 74a). The only restriction would be that the child cannot inherit the property of its natural father unless the natural father on his part admits that he is the father. But aside from the question of inheritance the child is absolutely kosher and there is not the slightest objec tion to the proposed widowerbridegroom adopting this child as his own.

But as to the marriage between this proposed bridegroom and the girl, the law interposes definite delays. Actually she is to be looked upon as having been previously married; that is to say, as if she were a widow or a divorcee. In that case the law requires that there be a delay of three months. (See Shulchan Aruch, Even Ha’ezer 12:1.) The purpose of this wait in such cases is to guard against any doubt as to the paternity of a child that might be born of the second marriage. If, for example, she would have waited only two months instead of three and a child were born seven months after this marriage, it would be uncertain whether the child is a ninemonth baby of the original relationship or a sevenmonth baby of the new one. Hence, a three month pause is required and it is called havchanah, a period distinguishing.

But there is still another reason for delay in this case. Even Ha’ezer 13:11 reads as follows: “The sages have decreeed that a man may not marry a woman impreg-nated by another man, nor a woman suckling the child of another man until the child is twenty-four months old.”

Now there are exceptions that might be applied with regard to either of the two waiting periods mentioned, and both exceptions are mentioned by Isserles. One is that the waiting period need not be strictly observed with regard to those women who have not been sexu ally moral. Thus there are cases mentioned in the responsa of the periods of waiting being shortened or ignored in such circumstances, especially when the man who had the illicit relation with the woman is the same man who now wants to marry her. But according to some authorities it would apply to a nonmoral woman even if it is not the same man who now wants to marry her. See the various responsa mentioned in the Pische Teshuvah. Of these various responsa perhaps the three most interesting are Judah Minz of Padua in the fif-teenth century, in his responsum #5; and also Jacob Reischer of Metz, Shevut Yaakov, III: 116; and more recently, Jacob of Karlin, Mishkenot Yaakov, Even Ha’ezer, #7. In other words, there is considerable basis in the traditional law for shortening or even canceling the period of waiting for a woman who has been sexually immoral.

Judah Minz of Padua, in his responsum #5, gives an additional reason for shortening the period of waiting (besides the reason of the moral character of the people concerned). He makes reference also to the general mood of the environment. He says that at that time in Italy (fifteenth century) it was a period of increasing sexual looseness, and it was also because of this environmental fact that he was moved to shorten or cancel the period of waiting. So this famous Italian rabbi was well aware that in dealing with the inherited enactments of the law we have to take into account the changing mood of the environment and the people. We would consider this basically a liberal point of view. We, too, could say that this is a period of changing sexual morals and it would be wiser to follow the example of Judah Minz and be a little more liberal in the interpretation of the law. But actually the liberal point of view goes deeper than an awareness of the changing environment. The chief difference betwen a liberal and an Orthodox interpretation of the law is as follows: The Orthodox ask, what is the law? and then follow the law; the liberal is concerned, not merely with what the law is, but what is the basic purpose of the law? Can we discover what moral aim underlies the law? Then we ask ourselves whether that moral aim can best be fulfilled under modern conditions by the law as it stands, or perhaps better in another way.

Therefore we ask, what is the real purpose of the requirement of the law that a man who wants to marry a pregnant woman must wait twenty-four months after the child’s birth? The purpose is clearly stated in the discussion of the law. There is fear that if this young mother marries sooner, her milk may be spoiled by another pregnancy or the child may be neglected or harmed. In other words, the purpose of the law is the protection of the child.

With this clear intention, we can say that there are many different circumstances today. First of all, mothers in most Western countries no longer nurse the child with their own milk. Secondly, would it not be a better protection for the child if it were born into a family in which it is immediately accepted? In other words, to fulfill the real aim of the law to protect the child, it would be better to cancel the old requirement, which is not Biblical anyhow, but which is described in the Shulchan Aruch by the words “the Sages de-creed.” Considering the safety and welfare of the child, no liberal rabbi would hesitate to marry this couple at any convenient date which they might choose.