CIRCUMCISING THE CHILD OF AN UNMARRIED COUPLE

QUESTION:

An unmarried couple living together have had a male child. They ask that this child be circumcised and all the usual public announcements be made in the congregation. (Asked by Rabbi Jonathan M. Brown, Long Beach, California.)

ANSWER:

IT IS NOT clear from the question whether both the man and the woman are Jewish or whether the woman is a married woman (i.e., to a man other than the man she is now living with). If she is a Jewish woman, the child is Jewish whether the man is Jewish or not. If she is an unmarried Jewess, the child is both Jewish and legitimate. If she is a Jewish married woman, the child is illegitimate, a mamzer.

Even if the child is illegitimate, he has every right pertaining to a legitimate Jewish child. He may be Bar Mitzvah, etc. (see references in Contemporary Reform Responsa, p. 92). Certainly he must be circumcised (see Shulchan Aruch, Yore Deah 265:4). It is to be noticed, however, that the Shulchan Aruch, in discussing the circumcision of an illegitimate child, gives two cautions: first, that the concluding blessing of the child be omitted, and second (according to Isserles), it must be publicly announced that the child is a mamzer. The reason for the first caution—that the blessing be omitted—is explained by the Shach: we do not want such children to increase in the Jewish community; the reason for the second caution is that a mamzer, while he has every right as a Jew, has one disability—namely, he may not marry into a legitimate Jewish family. Hence the need for the public announcement that the child is a mamzer.

It is debatable whether in our contemporary mood we would follow these two cautions of the Shulchan Aruch, but we learn from the very fact that such cautions were required that we, too, even in our contemporary permissive mood, also have strong reason for caution. Would we want to make public announcement to our congregation that we consider such living together to be equivalent to marriage? Are we not justified and in duty bound to indicate in some way or other our opposition, from the standpoint of Judaism and public morality, to such so-called meaningful relationships?

We certainly must be concerned with how “meaningful” such a relationship is meant to be. Does the couple mean it to be lifelong, as every marriage should be intended to be, or is it just a sexual convenience in which both parties hold themselves free to leave each other without any formalities? There is no law, Jewish or public, to put any hindrance to their just leaving each other at the slightest quarrel or impulse. If this couple considers their relationship a sort of enduring marriage, there is indeed something in the Jewish past that would apparently justify it. The first Mishnah in Kiddushin says that a woman may be married by the very act of sexual intercourse. But this is understood to mean that the man intends this sexual act to mean marriage, i.e., permanent. In fact, some authorities require that the actual intention of the act be solemnly declared in the presence of witnesses. However, this marriage by the symbolic sexual act (b’biya) was frowned upon; Rav in Babylon publicly whipped anyone who presumed to marry in this way (see Kiddushin 76b), and his reason was to discourage public immorality (m’shum peritsusa). In other words, even if such a couple means their relationship to be relatively permanent, it is still destructive of public morality, and we must surely follow the intention of Rav and discountenance it and discourage it as much as possible.

This, then, brings us to the question of the circumcision of the child. The child has every right to circumcision, but we have every duty to follow certain cautions in this situation in order to discourage such a relationship. I do not think that in our present mood we would feel required, if the child is illegitimate, to make a public declaration of the fact. It is not our feeling today to stigmatize any innocent child, and as for the danger that an illegitimate child might perhaps marry into a legitimate family, we do not care to keep close watch upon such possibilities. We do not seek to discover whether some illegitimate has married into any particular family. In other words, we follow the Talmud in Kiddushin 76b, where the Sages say, “All Jewish families are presumed to be legitimate.”

Our concern is not with the child but with the parents. Our responsibility is to indicate our disapproval of such a relationship and certainly not to declare that we consider such a relationship as normal and proper as that of a regularly married couple. Therefore the suggestion of the questioner is sound, “We would certainly attend and officiate at a circumcision or naming that would be privately conducted, but would prefer not to follow our normal procedure of naming the child during a Sabbath service because of the parents’ unmarried state.”

In other words, we transfer the traditional cautions from the child to the parents. The child will have every right, but the couple cannot receive public acknowledgment or honor from a Jewish congregation.