CCAR RESPONSA

5767.2

Adoption, Conversion, and "Patrilineal" Descent

She'elah

Two lesbian women are expecting a baby conceived through sperm donation. One of these women is Jewish and affiliates with the Reform movement, but the other is not, and it is she who will be the birth mother. The sperm donor is not Jewish. The two women partners will be the child’s parents, and they plan to raise their child in a Jewish home. Will their baby have to undergo a formal conversion (i.e., be immersed in a mikveh) to confer Jewish status according to Reform movement principles? Will the Jewishness of the non-carrying parent-partner play a role in conferring Jewish status to the child, as it could in a situation of patrilineal descent where the parents are heterosexuals? (Rabbi Andrew Vogel, Brookline, MA)

Teshuvah

We should state at the outset of our teshuvah that this couple’s sexual orientation is not germane to the issues at hand. Our sho’el’s questions would apply as well to the case of a heterosexual couple. In either case the child, as the offspring of two Gentile biological parents, would be a Gentile at birth and would subsequently be adopted by the mother’s Jewish partner. The critical factor here is that of adoption: how does a Gentile child acquire a Jewish identity when adopted by a Jewish parent or parents? Is a formal conversion (giyur) necessary?

1. Adoption and “Patrilineal” Descent. Our sho’el asks whether this child might qualify as a Jew under the CCAR’s doctrine of “patrilineal”descent. That doctrine, more properly called “the doctrine concerning the status of offspring of mixed marriage,”[1]  is set forth in a resolution enacted by the CCAR in 1983:[2]

The Central Conference of American Rabbis declares that the child of one Jewish parent is under the presumption of Jewish descent. This presumption of the Jewish status of the offspring of any mixed marriage is to be established through appropriate and timely public and formal acts of identification with the Jewish faith and people. The performance of these mitzvot serves to commit those who participate in them, both parents and child, to Jewish life.

Depending on circumstances, mitzvot leading toward a positive and exclusive Jewish identity will include entry into the covenant, acquisition of a Hebrew name, Torah study, Bar/Bat Mitzvah, and Kabbalat Torah (Confirmation). For those beyond childhood claiming Jewish identity, other public acts or declarations may be added or substituted after consultation with their rabbi.

Some might argue that this doctrine applies to our case because adoption creates a legitimate family relationship; one’s adoptive parents are in every respect one’s real parents.[3] This child, who acquires a Jewish parent by way of adoption, should therefore be treated in every way as though she or he were the biological offspring of that parent. This Committee, however, has understood the doctrine to apply exclusively to biological offspring.[4] That is because the 1983 resolution comes to adjust – but not to abolish – the traditional “biological” definition of Jewishness, i.e., descent from a Jewish mother.[5] The new definition, though it differs from the traditional one in some important respects, reaffirms the central importance of biological descent for the determination of Jewishness. Thus, we continue to recognize the biological offspring of two Jewish parents as a Jew, even in the absence of “appropriate and timely” acts of Jewish identification, and we continue to recognize the biological offspring of two Gentile parents as a Gentile who would require conversion in order to become a Jew. Similarly, the child of one Jewish parent enjoys a “presumption of Jewish descent” solely because he or she is the biological offspring of that parent, and upon the performance of those “appropriate and timely” acts he or she is considered to have been Jewish from birth.[6] The child, that is, has never been a Gentile, and no conversion is necessary to alter his or her status.

The child in our she’elah will be born to two Gentile parents and, as a Gentile from birth, will not begin life under the presumption of Jewish status. Our 1983 resolution on “patrilineal” descent does not apply to such a child, and it would seem that we would require conversion in this case.

2. Conversion in Cases of Adoption. Yet that conclusion is not at all obvious. A number of statements issued over the years by the CCAR and by this Committee declare that a Gentile child adopted by a Jewish family requires no formal giyur. In 1947, the Conference enacted the proposal of its special Committee on Mixed Marriage and Intermarriage that adopted children should not be required “to undergo a special ceremony of conversion but should receive instruction as regular students in the school. The ceremony of Confirmation at the end of the school course shall be considered in lieu of a conversion ceremony.”[7] The 1961 edition of our Rabbi's Manual states that “a child adopted by a Jewish family is recognized as a Jewish child.”[8] And a 1989 teshuvah of this Committee holds: “Among us as Reform Jews, if no formal conversion took place during infancy then the act of raising the child as a Jew is tantamount to such conversion and nothing else needs to be done.”[9]

On the other hand, the Conference and this Committee have also issued statements that suggest the opposite position, namely that an adopted child requires conversion. A 1978 responsum writes that the adopted child’s naming ceremony, performed in the synagogue once the adoption process is completed, “would be considered sufficient ritual conversion” in most Reform synagogues[10]; that is to say, a ritual conversion is necessary, and the ceremony of naming would be a suitable rite for that purpose. In 1984 this Committee reiterated that the adopted child should be named in the synagogue, “with a berit [i.e., circumcision] for a male, and if the family desires, tevilah, [ritual immersion].” The above are defined as “ritual acts” that constitute “the conversion conducted at the time of infancy.”[11] Gates of Mitzvah (1979), the CCAR’s guide to the Jewish life cycle, tells us that “an adopted child should be named in the synagogue and entered into the berit as soon as the initial legal procedures for adoption have been completed.” If the child is not an infant, “the rabbis should be consulted as to the procedure for formal entry into the Jewish community.”[12] Here, too, a ritual of entry into the Jewish community – i.e., a conversion – follows the adoption. Our current Rabbi’s Manual (1988) recommends that all legal adoption procedures be completed “before finalizing any change of [the child's] religious status,”[13] indicating once more that the legal adoption and the establishment of the child’s Jewishness are two separate processes. Finally, this Committee explicitly urged conversion for adopted children in a 1999 teshuvah.[14]

3. Two Understandings of Conversion. This, to put it mildly, is a confusing situation. The Conference is on record in support of two contradictory policies on whether an adopted child requires a formal conversion to Judaism. This confusion, we believe, results from the conflict between two different understandings of the nature of conversion and the acquisition of Jewish status. These understandings have appeared in our published literature and have pulled us in different directions on our subject.

The first understanding holds that conversion is primarily a spiritual rather than a legal phenomenon. This conception, which arose fairly early in the history of the American Reform movement, led the Conference in 1893 to abolish the halakhic requirement that the proselyte (ger or giyoret) undergo the traditional rites of milah (male circumcision) and tevilah (ritual immersion).[15] In place of those rites, it was suggested that the prospective Jew-by-choice make a verbal declaration before the rabbi of “his or her intention and firm resolve” to worship the One God exclusively, to follow God’s laws, and “to adhere in life and death, actively and faithfully, to the sacred cause and mission of Israel, as marked out in Holy Writ.”[16] That this became the long-standing policy of the Conference is attested by the 1961 Rabbi’s Manual, which makes no mention of milah and tevilah in its “Conversion Service.” Rather, it asks the ger/giyoret to declare that he or she seeks admittance into “the Jewish faith” as an act of free will, that he or she renounces all previous religious affiliations, that he or she will establish a Jewish home, raise Jewish children and the like.[17] The ceremony of giyur, in other words, testifies not so much to a change in the proselyte’s legal status as to the transformation in his or her religious consciousness and/or belief system. This definition of conversion obviously cannot apply to children. As the Committee on Mixed Marriage noted in 1947,[18] “A young child can hardly be examined as to motives, nor can it be well instructed in the principles of Judaism.”[19] Thus, if we no longer require the traditional rites, “how are we able to convert young children or even infants?” The committee answered that, for infants, “the declaration of the parents to raise them as Jews shall be deemed as sufficient for conversion. This could apply, for example, to adopted children.” Those statements of the Conference that do not require formal conversion for adopted children follow the line of thinking about conversion and the acquisition of Jewish status.

The second understanding is reflected in the pronounced recent trend within the CCAR to restore the initiatory rites for conversion. This trend, noted in a number of our responsa,[20] is part of the larger tendency in contemporary Reform practice to recover many ritual observances set aside by previous generations of Reform Jews.[21] It is also evidence of a different way of thinking about giyur. Conversion in this view is no longer exclusively a matter of personal religious transformation but, as well, the ritual process that signifies one’s entry into the Jewish people, an act of identification with the history and traditions of Israel. It follows that a Gentile who enters the covenant ought to do so through the formal procedures that have historically accompanied that transition, the same ritual process that, according to our tradition, our ancestors undertook prior to their entry into the covenant at Sinai.[22] Thus, in 1979 the Gates of Mitzvah could assert that “we recognize today that there are social, psychological, and religious values associated with the traditional initiatory rites, and therefore recommend that the rabbi acquaint prospective converts with the halachic background and rationale for berit mila, hatafat dam berit, and tevila and offer them the opportunity to observe these rites.”[23] Citing this rationale, the 1988 CCAR Rabbi’s Manual makes provision for milah and tevilah in its “conversion service.”[24] In 2001 the Conference reaffirmed this position: “Rabbis should educate gerim concerning appropriate traditional rituals for the ceremonies of giyur... and should use them as appropriate.”[25] This stance suggests that we are today less likely to draw sharp distinctions between the formal/ritual and the spiritual/intellectual aspects of giyur; both are essential parts of the concept as a whole. And if that is the case, the question posed by the 1947 committee –  “how are we able to convert young children or even infants?” – loses much of its force, inasmuch as children, like adults,  can enter the covenant through milah and tevilah. Our 1988 Rabbi’s Manual, which speaks of the conversion of children as a real and meaningful[26] reflects this second way of thinking about giyur.

4. Our Position. Faced with these profound differences in Reform practice and doctrine, this Committee has no easy task in arriving at some sort of resolution. Both of these views are well-supported in the history of our movement, and we therefore cannot suggest that either of them is “incorrect.” Nonetheless, we find the second understanding the more persuasive of the two and accordingly reaffirm the decision in our 1999 responsum: Gentile children adopted by Jewish parents should be converted to Judaism. We do so for the following reasons.

 

 

5. Conclusion. The baby who is the subject of our she’elah should be formally converted to Judaism. We say this because: 1) our 1983 resolution on “patrilineal” descent applies only to children of one biological Jewish parent, 2) adoption in and of itself is insufficient to bestow Jewish identity upon a Gentile child; and 3) a formal Jewish process is therefore required to signify his/her transition to Jewish status. Our tradition calls that process giyur, and so should we.

The structure of that process is a separate question. The CCAR has never repealed its 1893 abolishing the requirement of the initiatory rites; therefore, rabbis who create conversion rituals that do not include these rites can do so within the scope of the Conference’s stated policy. Yet as we have noted, that policy has been significantly revised over the last several decades, both in terms of the practice of our colleagues who now insist upon these rites and in the official pronouncements by the Conference and its constituent bodies supporting their use. We would term this new, revised policy one of “preferred option”: although milah and tevilah are not absolutely required for conversion, our colleagues ought to use them, for adults as well as for children, unless the exigencies of a particular case dictate otherwise. This Committee has previously declared its support for this “preferred option,” and we reaffirm that stance here by quoting our earlier statement:[29]

In general, the tendency of this Committee is to urge in the strongest terms that all proselytes undergo the traditional rites for entry into the covenant. We do so, not because we suppose that Orthodox Jews will recognize the validity of our conversions, but because we regard these practices as a positive Jewish standard that applies to us as it does to all other Jews. This testifies to our conviction that when we accept a ger or giyoret into our midst, we convert him or her to Judaism. Although we presume that our proselytes will remain firm in their commitment to a Reform approach to our faith and tradition, we do not require that they do so; we do not make their conversion contingent upon their staying within our fold. We are not in the business of creating a separate sect, cut off from the rest of our Jewish family. Rather, when we accept a proselyte, we admit this person into am yisrael, the Jewish community as a whole, a living and historical enterprise of which we are an organic part. We therefore believe that it is appropriate and preferable to mark the moment of conversion not simply with liturgy of our own creation but precisely with those rituals that are and have been for centuries employed by the Jewish community as a whole.

NOTES

1.         The policy applies equally to the offspring of all mixed marriages, i.e., where one parent (either the father or the mother) is Jewish.

2.         CCAR Yearbook 94 (1984), 174-179; Ma`agalei Tzedek: Rabbi’s Manual (New York: Central Conference of American Rabbis, 1988), 226; Contemporary American Reform Responsa (CARR) no. 38 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=38&year=carr ).

3.         On this point, see Teshuvot for the Nineties (TFN), no. 5753.12, pp. 201-207 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=12&year=5753 ).

4.         See New American Reform Responsa (NARR), no. 125 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=125&year=narr ).

5.         That is, the biological offspring of a Jewish woman is a Jew, regardless of the Jewishness of its father, while the biological offspring of a non-Jewish woman is a Gentile even if its father is Jewish. See the final clause of M. Kidushin 3:12: “if a woman is legally incapable of contracting valid kidushin (Jewish marriage) with this man (i.e., the father of her offspring) or with any other man, the offspring follows her status. And who is this? This is the offspring of a Gentile woman or a Gentile maidservant.” Maimonides codifies this as follows: “This is the rule: the biological offspring (kol haba) of a Gentile slave or a Gentile or a Gentile maidservant or a Gentile woman follows the mother’s status; the status of the father is irrelevant” (Yad, Isurei Bi’ah 15:4).

6.         If the child is Jewish from birth, why do we require the performance of “appropriate and timely public and formal acts of identification” in order to establish his/her Jewish status?  See CARR no. 38 (note 2, above): the Conference recognized that Jewish identification, in an era when mixed marriage has become a widespread phenomenon, may have more to do with one’s education and upbringing than with the mere fact of one’s “belonging” to the Jewish community. For this reason, we introduced a stringency into the traditional halakhic definition of Jewish status, in that our position requires that the Jewishness of the child of one Jewish parent – even if that parent is the mother – be “established” (i.e., confirmed) by the performance of those “appropriate and timely” acts.

7.         CCAR Yearbook 57 (1947), at 170-171. The committee was chaired by our teacher Rabbi Solomon B. Freehof.

8.         Rabbi’s Manual, Revised Edition (New York: Central Conference of American Rabbis, 1961), 111.

9.         “Jewishness of an Adopted Child”, NARR, no. 118 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=118&year=narr).

10.       American Reform Responsa (ARR), no. 63 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=63&year=arr).

11.       CARR, no. 37 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=37&year=carr ).

12.       Gates of Mitzvah (New York: Central Conference of American Rabbis, 1979), D-2 and D-3, p. 18.

13.       Ma`agalei Tzedek (note 2, above), 224.

14.       CCAR Responsum 5759.1, “Conversion for Adopted Children” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=1&year=5759 ).

15.       CCAR Yearbook 3 (1893), 69ff; ARR, no. 68 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=68&year=arr ). The resolution follows a long and detailed report by a committee, chaired by Rabbi Isaac Mayer Wise, that claims to prove that the requirements of milah and tevilah for conversion were matters of minhag, customary practice, and were never truly demanded by Biblical or Rabbinic law. Our Committee has subsequently shown this report to be based upon faulty scholarship and dubious reasoning; see our responsum no. 5756.13 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=13&year=5756). Nonetheless, the resolution abolishing the initiatory rites remains on the books as the official policy of the CCAR, though this policy has been reinterpreted and modified through the years; see below in the text.

16.       ARR, no. 68 (see preceding note), end.

17.       Rabbi’s Manual (see note 8, above, 17-22).

18.       See note 7, above.

 

19.       We should note that the halakhic tradition encounters much the same problem with the notion of giyur katan, the conversion of a child, who by definition lacks the legal capacity to make a responsible decision to accept the Torah and “the yoke of the mitzvot.” The solution that Jewish law offers to this difficulty is what we might call “provisional conversion.” A Gentile child can be converted to Judaism on the strength of the presumption that he or she would consent to receive this “benefit” were he or she old enough legally to give or withhold consent. Nonetheless, upon reaching the age of legal majority the child does have the power to renounce this presumption, to refuse the conversion; in such a case, the giyur is annulled retroactively. See B. Ketubot 11a.

20.       ARR, no. 69 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=69&year=arr ); CARR, no. 44 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=44&year=carr no. 45 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=45&year=carr no. 47 (dealing with infant conversion; http://data.ccarnet.org/cgi-bin/respdisp.pl?file=47&year=carr ), and 49 (conversion of a child; http://data.ccarnet.org/cgi-bin/respdisp.pl?file=49&year=carr); TFN, no. 5752.2 (hatafat dam berit for a child;  http://data.ccarnet.org/cgi-bin/respdisp.pl?file=2&year=5752 ; CCAR Responsum 5756.6 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=6&year=5756 ) and 5756.13 (conversion of a child; http://data.ccarnet.org/cgi-bin/respdisp.pl?file=13&year=5756 ).

21.       Much has been written about this tendency, which some call the “return to tradition” in Reform Judaism, and we cannot do full justice here to the religious, cultural, and sociological aspects of this complex phenomenon. We would simply note that many ritual observances that were once criticized as either irrelevant or counterproductive to the goal of “modern spiritual elevation”(Pittsburgh Platform, 1885; see http://ccarnet.org/Articles/index.cfm?id=39&pge_prg_id=3032&pge_id=1656) are now regarded as appropriate expressions of our unique Jewish religious consciousness. For a fuller discussion, see our responsum no. 5759.7, “The Second Festival Day and Reform Judaism” (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=7&year=5759 ) at notes 6-10.

22.       B. Keritot 9a and Yevamot 46a-b; Yad, Isurei Bi’ah 13:1-4: the Israelites entered the covenant through milah and tevilah.

23.       Gates of Mitzvah (note 12, above), 146.

24.       Ma`agalei Tzedek (note 2, above), 210-214, 232.

25.       Central Conference of American Rabbis, Divrei Giyur: Guidelines for Rabbis Working with Prospective Converts, 2001 (http://data.ccarnet.org/glgerim7.html#n13 ), section 8b.

26.       See the responsa so indicated in note 20, above. See also Ma`agalei Tzedek (note 2, above), 233-234, on “Conversion of a Child.”

27.       On this subject see our responsum no. 5757.1 (http://data.ccarnet.org/cgi-bin/respdisp.pl?file=1&year=5757), section 1.

 

28.       See note 8, above.

29.       CCAR Responsum 5756.13 (note 20, above), section III.

If needed, please consult Abbreviations used in CCAR Responsa.