CCAR RESPONSA

Kaddish for Adoptive and Biological Parents

5753.12

She'elah

A child was adopted in infancy by Jewish parents, converted and raised as a Jew. Subsequently, the child discovered that his or her biological parents were Jews. Does the child have kaddish and yahrzeit obligations toward the biological parents? If so, is this obligation in addition to or in place of any similar obligation to the adoptive parents? (Rabbi Daniel K. Gottlieb, Concord, Ontario)

Teshuvah

This Committee has dealt previously with the issue of adoption.1 The case before us differs, however, in that it raises the crucial, often explosive emotional issue which every adopted child must confront: which set of parents, the biological or the adoptive, are the "real" parents? To put the question in Jewish terms: to whom does this child owe the primary responsibility indicated by the commandment to "honor your father and your mother"? Sooner or later, say many experts in the field, every adopte child must somehow come to terms with this question, and a great deal is at stake in how he or she answers it. Accordingly, the psychological literature on adoption deals extensively with the subject. In this teshuvah, we want to examine the issue from the standpoint of Jewish religious tradition, a tradition we seek to understand and interpret as best we can from a contemporary liberal perspective.

Halakhic Precedents. Had this child been born a Gentile, tradition would surely have regarded the adoptive parents as his or her only parents. The conversion would have severed the legal tie with the biological parents.2 In this instance, though, the child was born to Jewish parents, and this fact matters greatly: he or she has inherited Jewish status from the biological mother and father.3 Jewish law, moreover, regards the legal connection between Jewish parents and their biological offspring as a permanent one.

The concept of "adoption", through which a parent-child bond is created through legal means and thereby replaces the bond linking the child to his or her biological parents, is not to be found in the Talmudic sources. The "adoptive" parent is always referred to as a legal guardian (apotropos) who raises (megadel) the child; that person is never called "father" or "mother". The biological parent, meanwhile, never ceases to be the parent. A number of commentators in fact hold that a child is obligated to fulfill the commandment to "honor your father and your mother" for the biological parents even if they did not care for the child during his or her lifetime. The essence of parenthood, in this view, lies in the procreation of the child, a fact which even the severest kind of parental neglect cannot erase.4

This theory leads to some important halakhic consequences. A contemporary authority rules that "an adopted child...is obligated to honor (his biological parents) during their lifetime and upon their death, and to observe the laws of mourning and kaddish as any other child, even though he had no contact with those parents throughout his life."5 The child's obligations toward the adoptive parents, by contrast, are not so strict. R. Gedaliah Felder, in an authoritative treatise on the halakhot of conversion,6 declares flatly that a person is not required to "honor" his or her adoptive parents. He hedges this conclusion somewhat with the remark that, as a matter of courtesy and good manners, one ought to show respect to those who have raised and cared for one; thus, the adoptee ought to say kaddish for his parents, unless this should somehow violate the prerogative of the parent's biological children.7 Similarly, R. Ovadiah Yosef rules that a person need not observe the rites of mourning (avelut) for the adoptive parent, nor should he say kaddish for that parent unless there are no biological children who can fulfill the requirement.8 In short, one may mourn one's adoptive parents; one must mourn one's biological parents. In this line of reasoning, the connection between Jewish parents and their biological offspring is permanent and "real", while that forged by adoption is both artificial and less halakhically compelling.

Differing Trends. There is, however, another discernible trend in Jewish legal thought, a trend composed of a number of rules, principles, decisions and customs which point in the opposite direction and portray the family relationship created by adoption as no less "real" than the biological one. These are as follows:

1. The applicability of the commandment to honor one's parents to all biological parent-child relationships is not necessarily absolute. A Talmudic dictum holds that a parent may legitimately renounce the kavod (honor) owed him by a child.9 There is no more obvious case of a "waiver of rights" than a parent who has placed a child for adoption. This is not to imply that the parent's decision is cavalier, arbitrary, or thoughtless; indeed, in many circumstances that choice is a painful one which the parent nonetheless recognizes as the most responsible option available. But when a biological parent agrees to allow others to raise a child as their own and to forego all the personal and financial obligations of parenthood, it is reasonable to conclude that the parent agrees to forego "honor" as well.

2. How can parents waive this "honor" when children are required to render it to the ones who bring them into the world? The answer is suggested by the author of the Sefer Ha-Chinukh (mitzvah # 33), who describes the commandment to honor one's parents differently than do the authorities cited above. Its purpose, he writes, is to recognize and show compassion to those who have done kindness for us during our formative years; it teaches us to be grateful for the goodness we have received from them. He does, it is true, add that the commandment also serves as a reminder that one's father and mother are the reason for one's physical existence. Yet by equating these two purposes, he acknowledges that the essence of parenthood lies at least as much in the care, the love, and the teaching which the parent bestows upon the child as it does in the fact of procreation. It follows that the duty to honor our parents defines our relationship toward those who have shouldered these obligations at least as much as it does that toward those who supplied the genetic material from which we were conceived. Adoptive parents, that is, are one's "real" parents, as real as the biological ones.

3. The halakhah often treats the adoptive relationship precisely as it does the biological one. R. Benzion Ouziel rules that parents are required to provide food, housing, and education for their adoptive children in the same measure as for their biological offspring. This obligation also extends to the emotional side of family life: the rabbinic court is empowered to intervene on behalf of the adoptive children should they be treated unfairly in any way by other members of the household.10 R. Moshe Feinstein declares that an adopted child may be named "the son/daughter (ben/bat) of the adoptive parent" rather than of the Jewish biological parent or of "our ancestor Abraham" in the event the child was born to a Gentile mother and subsequently converted.11 He apparently relies upon a responsum of R. Meir of Rothenburg,12 who holds that a person may, in a legal document, legitimately refer to the child he has raised in his home as "my child." Some authorities limit this ruling, arguing that a father may call an adoptee "my child" only when he has no other biological children; if other children exist, the document is invalid.13 This has been explained as an attempt to avoid confusion and contention in matters of inheritance. We presume that a father would rather bequeathe his property to his child than, say, his wife's child from a former marriage; a document which equates the two children is thus presumed a forgery.14 Halakhists are in doubt as to how the law is decided,15 but in our case the presumption clearly does not hold.

Adoptive parents agree under civil law to treat the child in matters of property and inheritance as though he or she were their biological offspring. This agreement is valid under Jewish law as a gift made "in contemplation of death" (matanat shekhiv mera) by which property is distributed so as to avoid the division demanded by the inheritance laws.16 It is also binding under the doctrine "the law of the land is the law" (dina demalkhuta dina), by which monetary obligations entered into under civil law are enforceable at Jewish law as well. Since the parents are thus obligated to their adoptive child, the objection to R. Meir's ruling is moot. A parent may refer to an adoptive child as "my child" in all respects, legal as well as emotional.

We should also refer to the issue of yichud. Individuals are ordinarily forbidden to be alone together with members of the opposite sex other than their spouses. Parents are exempt from this prohibition on the theory that family ties suppress any sexual inclinations they might have toward their children and other blood relations.17 Some authorities hold that this applies only to biological children; thus, it is only with great difficulty that R. Eliezer Yehudah Waldenberg permits parents to be alone with children adopted in infancy.18 R. Chaim David Halevy, however, takes the opposite view. Parents may be alone with and display normal physical affection to their adoptive children, for their relationship to them is exactly the same as their relationship toward biological children. The adoptees have become "like real children (kevanim mamash) in every respect."19

The matter of yichud illustrates an important development of halakhic thought. As we have seen, Jewish tradition offers two contradictory approaches concerning the relationship between parents and their adopted children. The one defines the status of adoptees as somehow less "real" than that of biological offspring; the other regards adoptees as the "real" children of their adoptive parents. Some halakhists have come to assume the second approach, at least with respect to certain issues, not because they regard the first approach as "wrong" but rather because it is irrelevant to contemporary social reality. They understand, that is, that the traditional distinctions between biological and adopted children are derived from sources which do not know of our present-day institution of adoption. When those sources speak of non-biological parenthood, they refer to situations analagous to those of step-parents or foster parents, guardians who cannot say with legal accuracy that "this is my child." They do not describe the case of adoption in which, as R. Halevy notes, the emotional differences between biological and non-biological children virtually disappear. Adoption, some authorities have come to understand, creates a "real" family relationship, characterized by the same feelings and emotions that pertain to the bond between biological parent and child. It therefore makes no sense to think about adoption as though it were the same institution as its Talmudic antecedents.20

Liberal Considerations. We agree, and we would go farther. We propose to apply this insight to all issues. We believe it is time that Jewish law erase all invidious distinctions between biological and adopted children. We do so not only because we regard adoption as a new phenomenon, different from legal guardianship, but because of our sense of what Jewish parenthood is truly about.

Parenthood is about family, and adoption creates family just as surely as does biology. We hold with the Talmudic sentiment that "one who raises an orphan in his home is regarded by Scripture as though he has given birth to that child" (BT. Sanhedrin 19b). We believe that those rules, principles, and customs within the tradition which portray adoptive families as "real" families are motivated by the same sentiment. And, most importantly, we agree with the Sefer Hachinukh that the essence of parenthood does not and cannot consist of the act of procreation. Parents of adoptive children, who love them as their own, care for them, and guide them, who stand by them during the crises and the joys of their lives, who raise them to adulthood, who teach them Torah and worldly wisdom are the real parents of these children. They are no less entitled to "honor" than the biological parents. Our best understanding of Jewish law and religious values demands that this simple fact be accorded full and complete recognition.

We do not hold thereby that adoption renders biology irrelevant. Indeed, the individual in our case is a Jew because the biological parents were Jewish. Had they been Gentiles, a conversion would have been necessary to create a Jewish family relationship between adoptive parents and child. Yet our case deals not with lineage but with parenthood. And though the child does not owe his or her Jewish status to the adoptive parents, they are no less entitled to love, honor, and filial devotion.

In this case, the individual may choose say to kaddish and observe yahrzeit for the biological parents. This may be quite helpful on psychological grounds as a means for helping this person come to terms with his or her past. At the same time, however, he or she must observe all the customs of mourning for the adoptive parents. Children are obligated to show their adoptive parents all the deference and honor expected of Jewish children, for indeed, these have become their parents in every respect.

Notes

  1. See American Reform Responsa, # 62-63, pp. 199-208.
  2. "A proselyte is like a newborn"; BT. Yevamot 22a and parallels.
  3. M. Kiddushin 3:12; Yad, Hilkhot Issurey Bi'ah 19:15; SA, EH 8:1 ff.
  4. See both the Meshekh Chokhmah and the Ketav Sofer to Deuteronomy 5:16.
  5. R. Yonah Metzger, Resp. Miyam Hahalakhah, v. 2, # 18.
  6. Nachalat Zvi, p 37. R. Felder cites approvingly the Talmudic story (BT. Sotah 49a) of R. Acha bar Ya`akov, who raised his daughter's son. When the latter had grown, R. Acha said to him, "bring me some water". The young man replied, "I am not your son" (Rashi: I am not required to honor you as a son honors his father).
  7. See also R. Yehudah Greenwald, Kol Bo `al Avelut, p. 375, who writes that the adoptee's obligation of "honor" toward the adoptive parents is not equivalent to that owed to the biological parents.
  8. Yalkut Yosef, v. 6, p. 100. See also R. Aaron Felder, Yesodei Smochos, p. 74.
  9. BT. Kiddushin 32a; Yad, Hilkhot Mamrim 6:8; SA Yore De`ah 240:19.
  10. Sha`arey Ouziel, v. 2, pp. 184-185.
  11. Resp. Igerot Moshe, YD, # 161.
  12. The responsum is found in the collection entitled Teshuvot Maimoniot printed at the conclusion of Yad, Sefer Hamishpatim; it is # 48 in that collection. See also Isserles, CM 42:15.
  13. R. Chayim Benveniste, Kenesset Ha-Gedolah, CM 42:15.
  14. R. Moshe Sofer, Resp. Chatam Sofer, EH, v. 1, # 76.
  15. See R. Eliezer Y. Waldenberg, Resp. Tzitz Eliezer, v. 4, # 22.
  16. See Yad, Hilkhot Zekhiah Umatanah, ch. 9.
  17. See Rashi, BT. Kiddushin 81b, s.v. ve-dar. This theory is, of course, a presumption, valid in most (but, tragically, not in all) families.
  18. Resp. Tzitz Eliezer, v. 6, # 40, ch. 21.
  19. Resp. `Aseh Lekha Rav, v. 3, # 39. See also R. Nachum Eliezer Rabinowitz, cited in Techumin, v. 10, 1989, p. 317, # 19.
  20. R. Halevy (see note 19, above) significantly points to contemporary practice ("go out and see what the people are doing"; cf. BT. Berakhot 45a) to justify his decision: since adoptive parents treat their children as though they were biological offspring, there is no reason to enforce upon them an halakhic distinction which has now become artificial. A popular discussion of this subject may be found in Dennis Prager, "Blood vs. Love," Ultimate Issues 11:2 (1995).

If needed, please consult Abbreviations used in CCAR Responsa.