THE “UNWANTED” CHILD

QUESTION:

From the point of view of Jewish legal tradition, under what circumstances may an “unwanted” child be given up for adoption? (Asked by Paul A. Flexner, Youngstown, Ohio.)

ANSWER:

PERHAPS A BETTER term than “unwanted” should be used to describe the child, because it well may be that the mother would very much want to keep the child but for many reasons is unable to do so. Then the question might be rephrased as follows: Under what circumstances, according to Jewish law, may a mother give up a child for adoption?

There is a great deal of evidence in literature that children were given up by their parents. The Mishnah and the Talmud have a long sequence of legal development about children who have been abandoned by their parents. There are two classes of such children (both described in the Mishnah Kiddushin 4:2): One, shetuki, from the root meaning ‘ ‘silence”; this refers to children who are old enough to know their mother but do not know (i.e., there is silence about) their father. The other, asufi, are infants of whose parentage nothing is known.

In the discussion of these abandoned infants, the law gives a sort of an acceptance of the necessity which led the parent or parents to abandon the infant. The law reads that if it is in time of famine, then we assume that the parents have abandoned the child because they are no longer able to take care of him and they hope that someone will pick up their child and feed it (Kiddushin 73b, Even Hoezer 4:31). In other words, applying this to modern times, one reason for giving up a child would be if the parent or parents are unable to take care of the child and to raise it.

There is, of course, another motivation on the part of a modern parent to give up a child besides the motivation— which, alas, is not too infrequent—of the lack of means to maintain it. There is the sense of shame on the part of a young unmarried woman at having borne a child out of wedlock. The element of shame is an important consideration in Jewish law. If one person injures another, besides the pain and the healing for which the assailant must pay, he must also pay for the shame, if such is involved (Choshen Mishpot 420:3). In fact, shame is counted as one of the leading forms of injury. Among the types of shame mentioned in the law (Ketubos 3:4) is the shame caused either by rape or seduction. While the law does not discuss the possibility of a young woman in these circumstances giving up the child for that reason, it is obvious that among the asufi and shetuki, the abandoned children, many were abandoned, not only because of hunger, but because of shame. This, too, might therefore be considered a justification for giving up a child for adoption, even though it is not expressly mentioned, as hunger is mentioned, as a reason for giving up of the child.

There is one possible modern reason today which would not be supported by the tradition, and that is the special motivation to get rid of a child because it is illegitimate. In the first place, at least three-quarters of the infants considered by modern English and American law as illegitimate, would not be illegitimate according to Jewish law. In Jewish law, only the offspring of a union which cannot be made legal is illegitimate. For example, the offspring of an incestuous relationship, or the offspring of a relationship between a man and another man’s wife, these relationships cannot be legalized by a marriage at the time and such offspring only are illegitimate. But the offspring of a union with an unmarried girl (not a close relative) is, according to Jewish law, legitimate. Furthermore, while in all cultures illegitimate children are under some stigma and in Jewish law an illegitimate may not marry into a normal family, this latter is actually the only stigma. An illegitimate (even in the restricted Jewish sense) may be a judge, may be a witness, is bound to all the commandments as other people are.

Therefore it is not likely that Jewish law would provide any justification forgiving up an infant merely because it is illegitimate. However, it must be granted that in modern times and in modern society, the shame involved in having an illegitimate child is not in accordance with the liberal Jewish definition, but in accordance with the understanding of the environment in which the mother lives. The mother may well want to give up the child for this reason, but Jewish law has no specific support for it.

There is one additional justification in modern life for giving up a child for adoption. Roman law provided a regular legal system of adoption from one family to another. In Jewish law there was no such regular legal system. Nevertheless, one who raises another’s child—in other words, adopts him or her—is highly praised for it (Sanhedrin 19b). Examples are given in the Talmud of such private adoptions, even though there was no regular legal system for it. But today, there is a regular social organization for adoption, and whereas in the old days, in time of famine, a child might be left on the street in the hope that a worthy person would pick it up, nowadays prospective adoptive parents are examined and only if found worthy are given the child. Therefore there would be an additional justification today for giving a child up for adoption.

To sum up: The justifications for giving away a child are in Jewish law two clear ones: one, “hunger,” the inability to nourish the child; two, shame at having had the child. The permission is strengthened by the modern method of the careful selection of adopting parents.