Monday, July 15, 2019

Yuchsin and Genetic Testing – Part 3: Kasher Lavo – Whitewashing the “Blacklist”


Author’s Note – This is the third installment of what looks like a four part series. If you haven’t already, please see Part 1 and Part 2.



Welcome [back]!

In this post, I want to pick up from exactly where we left off, so it may pay to review the previous post. For those who only need a brief refresher, here are the key things to remember: 

We are going to analyze how a modern DNA test might impact three sample cases:

Case X – 19-year-old female Israeli soldier who discovered after her engagement that she is on the Rabbanut “blacklist”.

Case Y – Jewish man with pregnant wife who looks at the wife’s Facebook page to discover she is involved with another man, possibly the father of her baby.

Case Z – A woman from a chareidi background whose husband left her and she never received a get. She remarried civilly and had a daughter who she raised as a chareidi Jew.

I will also present the list of characters described in Case Y, though they can be applied to the same roles in any of the cases:

Shimshon – lawful wedded husband

Delilah – Shimshon’s hairdresser and unfaithful wife. The only one who “knows for sure”.

Shmendrik – the “other” guy.

Nimrod (or Nimroda) – offspring of Delilah and “Who-knows?”, the potential mamzer[et] in question.

Let’s get started.

From a Halachic standpoint, what does genetic testing do for paternity anyway?

One thing is certain, the mitochondrial DNA, which is the only portion that is absolutely conclusive, is totally irrelevant for paternity issues. We know who the mother is and that doesn’t matter. Then, what does count?

Interestingly, paternity is approached from two directions:

·         Positive – who the father is.

·         Negative – who the father isn’t.

The common genetic paternity tests of the past (and even today) were geared to rule out an individual from fatherhood. Before there was DNA testing there were some lower level types of genetic testing. Initially there was ABO blood typing. This was only about 40% effective to rule out fathers. But, in those 40%, it is absolutely conclusive. Any high school biology student could administer this test. It would not serve to rule in anybody.

About the 1970s, other blood components called HLAs were added to the blood tests and it brought up the rule-out percentage to 80-90% of scenarios. What this did was inadvertently give anybody who did not flunk the HLA test a 90% chance of being the real father. Especially if there are not too many other candidates.

Starting in the 1980s came the exact match rule-in tests - DNA Markers and Electropheresis (see this article). Currently, it is claimed that these tests can establish paternity with more than 99% accuracy.

So, how should the Halacha view the reliability of these tests?

First, the disclaimer that I am not a posek and it is not my place to suggest to poskim how to paskin. Nevertheless, I am a Halachic scholar (or student) and it is open to analyze what makes sense.

It seems simple that the HLA test and the DNA tests, even the mitochondrial tests, cannot be called “eidus”. This is because, despite all the precautions that are taken to make the tests reliable, we (Beit Din) do not see the samples taken and those same samples being analyzed in our presence. We only see a report of what was claimed to be done in a lab. Nobody can assure us that the samples were not mixed or substituted or that the results weren’t botched or falsified. Of course, these labs are all reputable and have no reason to falsify anything, and every reason not to, so I suppose we can give them a status of מסיח לפי תומו – declaration in good faith. Even then, the results are merely indicative of high probabilities but are not totally conclusive, with the possible exception of the mitochondrial DNA which Rav Yehoram Ulman (in the Headlines interview) wants to call a siman muvhak.

Hence, for paternity issues which don’t involve mitochondrial DNA, it is easy to Halachically dismiss the results even if a DNA test is done. The test results only serve as an umdenah and raglayim l’davar.

The simple ABO blood typing test is very different. Not only is blood typing absolute, but any person can see the test being done. All you need is a piece of paper 3 inches square, a pin, two bottles of anti-coagulate (A and B) and your customers – Shimshon, Delilah, and Nimrod.

All three walk into Beis Din and they can give their blood samples (two drops each) right in front of BD. Then we administer the anti-coagulates right in front of BD. We don’t even need to know which bottle we are using, only that the drops from one bottle are added into one drop of blood from each contestant and that the drops from the other bottle are added to the other set of blood drops. Then BD themselves can see the results. Takes a minute.

If either of Nimrod’s blood drops congeals and, at the same time, both drops of the parents from that same set do not congeal, it tells us unequivocally that Nimrod has either a type A allele or a type B allele that he didn’t get from either parent. It had to come from somebody else. Ergo, Shimshon is not the father. Likewise, if both of Shimshon’s blood drops congeal (he’s an AB) and none of Nimrod’s (he’s an O) or vice versa. According to my source, one of these discrepancies happens in about 40% of cases.

What is happening in this 40% is that the blood drops are witnesses who are testifying that Shimshon cannot be the father. I think it’s the same as when the gemara says הרי כריסה בין שיניה – her belly is between her teeth. This means that a pregnant woman’s belly speaks for her that she is not a virgin (no immaculate conceptions by us). Also, בנים עדיפי מסימנים – conceiving children is a better indicator than physical features to tell us that this person has achieved puberty. We call this “anan sahadi” – we ourselves (i.e., the Beit Din) are witnesses to this fact.

I think that in these 40% of cases, we have solid Halachic proof and there is no way to dismiss the results. There is no reason to avoid this test if the husband wants it and Beit Din should mandate it. This is because we are not allowed to rely on any chazakos or rubos if the status can be unequivocally resolved. Moreover, we usually won’t even need to perform a blood type test because everyone’s blood type is listed in their medical records. This is readily available information and a milsa d’avida l’gluyei.

In summary, the ABO test, if “negative” should have a status of eidus but the more advanced tests do not. So does it really help us to use them? Does it really hurt us to use them? If they are not really Halachically conclusive why does the Rabbanut forbid these tests in most cases (according to Reb Tzuriel Boblil)?

I think the answer to the last question is that the Rabbanut is inexorably intertwined with the secular court. If the secular court declares a person’s paternity based on genetic testing, the Rabbanut will need to recognize it. In his talk, we see that Reb Boblil is advocating for more “separation of church and state” in regard to paternity. It is important to point out that this relationship is not in effect outside of Eretz Yisrael.

So now, let’s have a look at our three cases – X, Y, and Z – and see what genetic testing may accomplish.

We will start with Case Z, the Wikipedia case featuring Rav Ovadia Yosef, ZT”L.

I noted earlier that Maran used a two-prong approach. (1) Perhaps the mother was not an eishes-ish and (2) perhaps the husband who never gave her a get is the real father. I posed the question as to whether he needed both of these factors or if even one alone would suffice.

If the eishes-ish question would by itself be grounds for a hetter, then the issue of who is the girl’s father is totally irrelevant. As such, DNA testing will not play a role in this case. Even if a DNA test confirms that the second husband is the real father – which is anyway our default assumption – Maran could still rule the girl Kosher l’Kehal because he will apply an uncertainly if the mother was married.

But I think it would be a big stretch to rule a hetter on this premise alone since (a) despite being able to locate enough witnesses to the marriage, the woman was still known to be an eishes-ish married in a chareidi wedding (chazaka) and (b) additional witnesses, or the ketuba itself, could materialize at any time and thus, retroactively nullify this premise. In fact, I surmise they could have come up with enough witnesses to confirm the marriage if they really wanted to. 

To rely solely on the second premise that perhaps the first husband is the real father, is also a stretch once the mother is openly living with another man. See Even HaEzer 4:14 (Rema).

Hence, I am assuming that Maran needed both premises. While each one by itself is very weak, when combined they create a sfek-sfeika (double doubt) which may be employed to rule leniently even if the chances for each doubt are quite remote. And here is where the genetic testing will make a big difference. Although it will not impact premise 1 (perhaps the mother isn’t married), it would certainly impact premise 2 (perhaps the true husband is the father). If we would positively rule out husband 1 as the father, we lose our sfek-sfeika.

Thankfully, this case was dealing with a grownup girl and, aside from the mamzerus question, paternity is not a legal issue. The second husband is not claiming paternity and, good for her, the first husband is not renouncing it, either. Furthermore, he is not cooperating with the Halachic inquiry. Because of this, we can afford to “not be bothered” to check out his blood type and, even if his blood type is on record, it may have fallen into the 60% which do not rule out paternity. There is nothing to be accomplished with any other DNA tests, because even if they positively rule out the first husband, I highly suspect that Maran would not accept the tests anyway because they are not eidus but rather just an umdenah.

One puzzling thing is that in chutz l’aretz there is a much more popular method of freeing a suspected mamzer. This is to assume that if the mother was loose against her husband for the known lover man, she may have also opened herself to additional other men. Since most men in the diaspora are not Jewish and a non-Jewish man does not produce a mamzer even from a genuine eishes-ish, the chances are higher than 50-50 that the child is not a mamzer.

Let’s move on to Case X, the 19-year-old chayelet. After holding us all in suspense throughout his talk, Reb Tzuriel told us that he worked on her case for over a year and came up with some formula of sfeikos and rubos that could be used as a hetter and that Harav Ovadia Yosef gave it his stamp of approval. He proudly announced she is now happily married with children and all is well.

This case is very similar to Case Z in that we are discussing a grown girl. Aside from inheritance, there are no longer any legal issues that hinge on paternity. Also, many of the Halachic issues that apply to boys (kahuna, yibum, etc.) do not apply to girls, which gives us more room to be flexible.

Since we don’t know what the hetter is based on, we don’t know if any of the genetic tests would impact the outcome. What we have learned from Case Z is that there can be grounds to free a questionable mamzer even if it is almost certain that the lawful husband is not the father.

Still, this case is a mystery because, as far as I can see, all of Maran’s tools that he used in the US case are not applicable in this one in Israel. It is much harder to question a woman’s marital status here in Israel being that all marriages are approved and registered in the Rabbanut. Though I don’t know for sure, it is more likely than not that the mother’s first husband is accessible to the Beit Din and that he renounced paternity to this girl. This makes it much harder to suggest that he may be the real father. Even the approach that he didn’t use – to suggest the real father may not be Jewish – doesn’t work here in Israel where most men are Jews.

All told, we don’t really know if and how genetic testing would impact this case.

So, finally, we look at Case Y – the young married fellow who saw what his wife wrote to another fellow on her Facebook page. Reb Tzuriel did not tell us at all what became of that case. We also don’t know if the child turned out to be a boy or if either of these men is a kohein which complicates matters even more. One thing is certain, if this case reached Reb Tzuriel, it must have reached the Rabbanut.

Now, if I was presiding on this case, I would definitely look at the blood types. They are probably all on record anyway and cannot be ignored. If this positively rules out Shimshon, then we have to accept this. If we can still get the kid off the blacklist by invalidating Shimshon’s  marriage or finding a swarm of non-Jews, let’s go for it. The only DNA test that will give us any more information is if we test Shmendrik for a match. He would need to consent to this but he probably doesn’t want to pay for eighteen years of child support either, although it’s almost certain that this is his kid. The court would have to order a test and it is quite possible that they would indeed since the ABO test ruled out Shimshon, Delilah owned up to the affair on Facebook, and somebody has to carry child support.

However, if the Rabbanut can find a way to save Nimrod from the blacklist as long as it is not confirmed that Shmendrik is the father, they may block the court from ordering a DNA test and the court may force Shmendrik to pay child support anyhow.

The question is: what to do if the blood types do not rule out Shimshon as the father?

As far as the court is concerned, Shimshon is the father by default. Right now, he does the paying. Shimshon obviously wants advanced genetic testing, but the Rabbanut won’t be happy about it. I am not sure why not. I previously indicated that the HLA or DNA tests cannot have a status of eidus because we can always question the reliability. So, I think we should at least do the HLA test. If it proves Shimshon the father, we’re all happy (well, maybe not Shimshon, but nobody makes the blacklist). If it rules out Shimshon, we can call it “inconclusive”.

Perhaps, the Rabbanut does recognize it as eidus since the margin of error is miniscule. Also, since the courts will certainly recognize this test, the Rabbanut will have to go along with it as well. In addition, the Torah gives a husband the special right to renounce his paternity without any other supporting proof. This is called “Yakir”. So, if Shimshon wants to claim the kid is not his, and he has an “inconclusive” HLA test to back him up, Nimrod is in hot water.

However, if we do these tests and they point to Shimshon, it’s good for everyone even though Shimshon may not be thrilled about it (Shmendrik will be overjoyed). The court and the Rabbanut will gladly accept the results. And we’ll apply it for bechora and kahuna and yerusha and everything!

Thus, my vote is to do the HLA test because it may prove Shimshon the father. But the Rabbanut’s vote is not to do it because it may prove him not the father.

What a dilemma!

Reb Tzuriel wanted to try to separate the legal status from the Halachic status of this kid. His idea is to force Shmendrik and not Shimshon to submit to a DNA test. But not to check it for the full range of markers (16 markers), only for about 60% of the markers. If the 60% of markers (9 markers) match Shmendrik, the court will have legal grounds to call Shmendrik the father and make him pay child support. Meanwhile, the Rabbanut will not accept these partial results and will uphold the chazaka that Shimshon is the father to keep Nimrod off of the blacklist. He claims that there are poskim who back his idea but not as many (or as prominent) as he needs to have.

I am very confused about why the Rabbanut would acknowledge a match of 16 markers to “paternalize” Shmendrik but not 9 markers. Why can’t they reject the results as a mere umdenah even if it’s a complete match? Moreover, how is this going to solve any of the other social and moral problems that are comprised in this case?

The truth is that I don’t really know what became of this case. I am assuming that Reb Tzuriel found a way to keep the child off of the blacklist just like he did for the chayelet and like Rav Ovadia did for the American girl.

But does not being on the blacklist mean that one is a-okay on the “white list”? Or is there a grey zone? Personally, I don’t think this is all just black and white.

So, stay tuned for…

…The Grey Zone.

Tuesday, July 9, 2019

Yuchsin and Genetic Testing – Part 2: Pasulei Kehal – The “Black List”


Author’s note – Please see Part 1!



Case X - true story:

Reb Tzuriel Boblil, a renowned Israeli askan in Halachic family issues is being featured on Israeli radio and he is taking calls from listeners. A young woman calls the station and says the following:

I have a problem. If you cannot find me a solution to my problem, I will kill myself right here over live broadcast!

Says Reb Tzuriel: You have called the right person at the right time. Consider yourself resurrected from the grave! Tell me your problem and, B’ezrat Hashem, we will get it solved.

Her story:

I am a 19-year-old chayelet (soldier) and I have a love interest. We went one day to the Kotel HaMaaravi and there he proposed to me. I very excitedly accepted his proposal and was in ecstasy. As we must, we went to the Rabbanut to register our marriage. The Rabbanut checks our IDs and says, “Stop!”. “My dear lady, we cannot authorize you to get married. We have your name on the Blacklist as a probable mamzeret.”

It appears that 19 years earlier, this woman’s mother, who was married at the time, sued a man who was not her husband for paternity and child support of this girl – and the man agreed to it and paid! (Lots of questions here, but he gave no further details of this backdrop). The case came to the attention of the Rabbanut at that time (Comment – there must have been a subsequent divorce, or else there is no reason that this case would reach the Rabbanut) and they automatically blacklisted her name as a probable mamzeret.

Until the moment they went to register to get married she had no idea about any of this, so it hit her out of “left field”. Now, if she can’t get out of this, her life is ruined forever.

What to do?

This was actually just one of a string of stories that was the opening volley of a lecture that I attended about a year ago in “Toen Rabbani” school. The lecture was delivered by Rabbi/Lawyer Tzuriel Boblil. 
(If you are good with Hebrew, you can see the entire lecture here:
https://www.youtube.com/watch?v=8xfAu5jXA28&t=995s

At around the 50 minute mark, the camera-man pans the audience so you can get a clear cut shot of me right in the thick of things).

Reb Tzuriel Boblil is a very accomplished Torah scholar – an alumnus of Yeshiva KBY – as well as an attorney. Like any decent professional, he is very devoted to helping his clients. Sadly, most of his clients bring along very heavy baggage. Reb Tzuriel specializes in working with the Rabbanut and Gedolei Horaah to find solutions for some very devastating problems. He is a humanitarian and a problem solver. Overall, a good guy!

In his lecture, he talks about thinking out-of-the-box and using “creative” Halachic techniques to find solutions to these problems. He claims that the vast majority of these problems can be solved within the framework of Halacha. I am all for solving problems and getting people out of fixes, but I think there are limits to how far one can stretch the rudimentary Halacha.

The story of the chayelet was the fourth or fifth on his list. His opening story was also a “doozie”.

Case Y

One fine day, a nice Israeli husband chanced across his pregnant wife’s computer which was open to her Facebook page. He decided to look at it and saw that she was communicating with some unknown (to him) male acquaintance. She wrote to him: “I can’t be sure if its his or its yours because when I got pregnant, he was in miluim (reserve duty).”

Needless to say, this did not enhance their relationship.

Reb Tzuriel did not expand on this story, but this one opens up a bigger can of worms than the earlier one.

In both cases, one of the main questions is the Halachic status of the offspring. Is it a mamzer – pasulei Kehal – or is it a kosher Jew who can marry any other kosher Jew? But in this second case, there is much more at stake. Paternity!

The first ramification is: who is responsible for child support for this kid over the next at least 18 years? Trust me, the betrayed husband isn’t going to want to shell out the 300-600K shekels that it costs to raise a kid that isn’t his. Especially if he breaks with the wife which almost certainly happens in most cases and especially if he thinks the child isn’t his.

However, if it can be firmly established that the child is his, he may be advised (and even may prefer) to “disbelieve” his wife on her cheating and make up with her and stay married for the sake of the child, which does indeed belong to both of them.

This is a situation where a DNA test would really come in handy. Of course, the results can push the case either direction. A match for the husband will clear things up and may even save the marriage. A match for the “lover” will cause havoc and could possibly render the child an official mamzer. Should we order one or not?

Reb Tzuriel explains that the law in Israel is as follows. The court officially puts the interests of the child in question above everything else. In general, the court will rule for whatever course of action is best for the child. In a situation that can cause mamzerus, the court will not allow a DNA (or any paternity test) without getting a confirmation from the Nasi of the Rabbinate. As a rule, the Rabbinate forbids these tests.

This puts numerous “threesomes” in a very awkward position. The Rabbanut does not want to allow a paternity test and wants to establish the chazaka that the child belongs to the proper husband and is a kosher Jew. Also, by secular law, the husband of any woman who has a baby is the legal father and obligated in child support unless proven otherwise.

On the one hand, what will happen is: Shimshon marries Delilah. Delilah dallies with Shmendrik and they produce a love child, Nimrod. Shimshon gets wind of this and is certain that Nimrod is not his. He even took a private paternity test on the side and the results confirm that he is not the father.  

Shimshon dumps Delilah who wafts into the waiting arms of Shmendrik and they marry. As is the standard, Delilah gets custody of Nimrod (more so, because Shimshon doesn’t really want him) but still claims to the court and/or Rabbanut that Shimshon is the father so that Nimrod doesn’t get blacklisted. Neither the Rabbanut, nor the court allow Shimshon to take a paternity test and will not acknowledge the private one he took.

Delilah sues Shimshon for child support – successfully. Delilah and Shmendrik happily raise Nimrod and tell him and the world that he is theirs – which happens to be the truth. Everyone forgets about Shimshon, and Nimrod, who truly is a mamzer, is cleared by the Rabbanut. Thus, Shimshon is cuckolded and divorced and saddled with eighteen years of child support for a kid that it not his and which certainly makes it hard for him to remarry. Shmendrik and Delilah are enjoying life, collecting cash from Shimshon and laughing all the way to the bank. 

This is quite reminiscent of the similar tale in the gemara Gitten 58a which sealed the fate for the second Bais HaMikdash. A Greek (Roman?) tragedy!

Moreover, Nimrod will grow up and get married under a "false" guise that he is kosher and raise a new generation of "hidden" mamzerim.

How can we avoid this?

Before we continue, let’s look at another true story. This one shows up in Wikipedia and involves Maran Harav Ovadia Yosef, ZT”L. I will copy paste.

Case Z

An example is a contemporary responsum by the well-known Israeli posekOvadia Yosef to Rabbi Grubner of Detroit, Michigan, establishing an impossibility to prove mamzer status in a situation where the evidence might appear to be clear-cut.

The case involved the daughter of an aguna,[23] who had been married by a Haredi rabbi to a husband who subsequently converted to Christianity and refused to participate in a Jewish divorce. The mother eventually divorced and remarried civilly and had the daughter years later. The daughter, who had been raised as an Orthodox Jew and attended a Haredi day school, brought up the question of her status herself prior to an impending marriage.

Rabbi Yosef proceeded systematically to disqualify evidence that a prior marriage had ever taken place. The mother's evidence was immediately disqualified as an interested party. The ketubah (Jewish marriage contract/certificate) was never found. The rabbi who performed the marriage was contacted, but Rabbi Yosef wrote that his testimony could not be accepted without the ketubah, and in any event required corroboration by a second witness. Attempts to contact the husband were abandoned after an adversarial conversation with his new, non-Jewish wife. Thus, Rabbi Yosef concluded there was insufficient evidence that a valid prior marriage had ever taken place.

Rabbi Yosef then proceeded to establish the possibility that the former husband might be the daughter's father. The mother testified that her former husband occasionally brought alimony payments and came for visitation in person and hence the two were sometimes at least momentarily alone together. Applying an ancient rule that when a husband and wife are known to be alone together behind a closed door the law presumes sexual intercourse may well have taken place, Rabbi Yosef concluded that it was possible the former husband was the daughter's father and hence Jewish law, which very strongly construes all evidence in favour of birth within marriage, had to presume that he was. Thus, Rabbi Yosef concluded that there was insufficient evidence of either a former marriage or that the new husband was the father, and hence he concluded that no evidence of mamzerut had occurred.

I don’t know how accurate this story is and there are numerous points that raise [my] eyebrows. Rav Ovadia ZT”L combined two approaches.

(1)        He “invalidated” (challenged) the eishes-ish status of the mother. I thought it was pretty neat for him to do this without pasulling the first marriage. He didn’t claim there was no first marriage; he merely said that there is insufficient proof to establish 100% that there was one and that the mother was an eishes-ish. (He had a lot of divine help on this. How convenient that the ketuba “wasn’t found”?! I also wonder what happened to the eidei Kiddushin, but we must assume that the Rabbi did not remember who they were and it just so happened that they couldn’t reach the first husband to ask him. Another “convenient fact” in this case.) The beauty of this approach is that we can concede that the real husband is not the girl’s father and still get her off the blacklist.

(2)        He “validated” the possibility – no matter how minute – that the real husband is the girl’s father.

The question is: Was Rav Ovadia’s hetter based on either one of the approaches independently (or as a “tziruf”)? Or, did he need to have both approaches in effect so that the hetter could be based on a sfek-sfeika (double-doubt)?

We’ll come back to this after we examine the main point of this discussion – DNA and genetic testing.

What do DNA tests do for us Halachically?

There are three distinct applications of DNA testing to deal with three distinct Halachic issues:

A.   Direct match – When DNA is used to identify an unknown person but not to link one person to another. This is important for cases of missing husbands and potential agunot. A wife may be able to provide a sample of her husband’s DNA from his shaver or toothbrush and the lab is trying to see if it is an exact match.

B.   Ancestral – When DNA is used to trace a known person to a given population or race from previous generations but not necessarily to an individual. As we saw in our last post, this is what is used to “substantiate” claims of Jewishness.

C.   Paternity – When DNA is used to determine who is the direct first-generation ancestor of a known person. In short, “Who’s your Daddy?”. This kind of testing is vital to paternity and mamzerus.

How Halachically sound is this testing?

On the one hand, the information we get from DNA testing is uncannily precise. But it is just as uncannily inconclusive.

In situation A – Agunos – we may expect this to be the most conclusive scenario, a direct match! But, ironically, it is the least conclusive. In this situation we have a serious technical problem. Sure, the saliva in the toothbrush or the hair in the shaver may be an exact match to the dead body in question. But how does a posek know conclusively that the saliva or hair came from this missing husband? Sure, the wife says so and it was exclusively his toothbrush, plus the odds of some random saliva perfectly matching the body we assume to be the husband is “mathematically impossible”, but this is not evidence in Halacha. It would alone be a long shot to find two witnesses that this was his toothbrush or shaver (I am not sure that one witness would be believed on forensic evidence even for eidus-isha), but it is certain that nobody can testify firsthand that the hair or saliva is his.

As such, the most that a DNA test can do is provide an “umdenah” (inconclusive proof) to attach to other factors under consideration. (Note - There is a possible alternative if the dead person has a child or parent, we can match DNA from the dead person to that of the child or parent. In this case we can verify the source of the DNA as we are about to see in the next paragraph. A posek may prefer this approach.)

In situation B ­– Ancestral – we are comparing DNA that we know comes from a known live person with that of unknown dead persons. We may be able to positively attest to both of these sources of genetic material, but this is as far as it goes. At least in the case on non-mitochondrial DNA, it doesn’t tell us much; only what percentage of one’s ancestry can be linked to a given population. It is at most a relatively weak “umdenah”. The mitochondrial DNA which can positively determine direct maternal lineage is much more significant. In the Headlines interview, Harav Yehoram Ulman asserted that it is so conclusive that it can be granted a status of “siman muvhak” (unique characteristic) which is better than an umdenah. In general, we are very happy to establish Jewishness (unless it may also establish mamzerus) so it is not surprising to hear that many poskim will accept the findings of mitochondrial DNA to confirm Jewishness when there are additional indications.

We now arrive at our main topic, situation C – Paternity. Paternity is a double-edged sword because there is a long list of ramifications that ride on it.

At the top of the list is Yuchsin. Remember those 10 levels? It’s not always limited to a question of mamzeruspasulei Kehal, if the person can marry a regular Jew. It gets a lot stickier if the husband or the suspected father is a Kohen. Is the child a Kohen? Can he go to a funeral, get the first Aliyah, marry a gerusha? A bit stickier if this is the wife’s first baby (a male) and one of the potential fathers is a kohen or levi and the other one isn’t. Is there a requirement for pidyon haben? With a bracha or without? What if neither one is a kohen or levi but each one refuses to do a pidyon haben? Can we be motzi mammon m’safek?

And it gets a lot stickier if either of these potential fathers has just one other son from a different woman. Then this other son grows up and gets married but, tragically, passes without children of his own. And, let’s say this “safek mamzer” is estranged from both sides, no longer religious (if he ever was) or is nowhere to be found (or demands a big payoff to do chalitza). Now we have a “yevama l’shukagunah d’oraysa on our hands! Or, let’s say this safek who got a hetter like Case Z and married a regular girl is the one who dies without children. There is a brother on each side but one of them doesn’t want to play?

After all of this comes simple yerusha and aveilus. Who to sit shiva for? What about for siblings?

Then, of course, are the legal issues of child support, custody and visitation.

And lastly are the ethical and moral issues – the right for one to know who his real father is, the right to associate with extended family members (grandparents, cousins) and to know the medical histories of his parents for health reasons.

For every single one of these issues the child, the “fathers”, the courts, and the Beis Din, need to know the truth. And for all of them, except for one, we want to know the truth.

The only real exception is the mamzer question. The prevailing Halachic consensus is that whenever, for lack of knowing the empirical truth, we can find a way to allow this child to be in Kehal Hashem, we don’t want to know otherwise. Better to stay in the dark.

But then, all of these other issues are going to come back to bite us.

One of the most serious and common issues is the issue of child support. If a husband (remember Shimshon?) was bilked and spurns both his wife (Delilah) and this kid (Nimrod), he certainly doesn’t want to get saddled with child support payments. But Delilah, who has since taken up with the “other guy” (Shmendrik), will swear up and down that she was faithful to Shimshon and might insist on not doing a paternity test “for the sake of the kid” just like I wrote earlier. Wouldn’t that just be cushy?

But, sometimes it backfires. If Shimshon has to pay, and Delilah and Shmendrik are "officially" saying the boy is Shimshon's (which is why he is paying), then Shimshon may also “claim” the kid. He may want custody and/or visitation and  to get the kid every other Yom Tov and for family gatherings as a father – and he might get it. After all, he’s paying for it. Check out this story. Though Delilah may have married Shmendrik and wants to bring up Nimrod as the product of her current union, which is the truth, try explaining to this kid why he is not a mamzer and yet is sharing his life with Shimshon who she tells him is not his father (but she told the court and BD that he is).

Another point. Let’s say Shimshon pays quietly and stays out of the picture and Nimrod doesn’t find out throughout his childhood that Shimshon even exists; what happens when Nimrod grows and is married with children and then discovers from a talkative relative or from some document he comes across that his true parents who raised him only married when he was three years old and at the time he was conceived and born, his mother was married to somebody else (Shimshon) k’das Moshe v’Yisroel?

What a catastrophe!

So, let’s get back to real life and review Cases X, Y, and Z and see if DNA testing is going to help or hurt.

But, due to the lengthiness of this post (I am only about half-way done), I think I need to cut it short and close this post here. The remainder of this post is almost finished so I hope not to hold up the show for as long as I did since the previous post.

So please bear with me and stay tuned for…


Whitewashing the Blacklist

Sunday, June 2, 2019

Yuchsin and Genetic Testing - Part 1: Kehal Hashem - The "White List"





ויתילדו על משפחותם לבית אבותם



רש"י – הביאו ספרי יחוסיהם ועידי חזקת לידתם, כל אחד ואחד להתייחס על השבט.

Rashi – Each person brought their family trees and birthright witnesses to verify their tribal ancestry.



רמב"ן –  ואיננו נראה שיהיו צריכין להביא שטר ועדים על יחוסיהם לשבטיהם.

Ramban – (Objecting to Rashi) It does not appear that they were required to bring documents and witnesses to verify their tribal ancestry.



אור החיים – כתב רש"י וכו'...והרמב"ן השיג וכו'...ואולי כי הוצרכו לחזקת לידה למיחוש ממזר שמכיר אביו...

Ohr HaChaim – Rashi wrote…and Ramban objects… And, perhaps, they [only] needed the birthright testimony to counter a question of illegitimacy (mamzerus) to ensure that they know their fathers…



We Jews consider ourselves privileged. We are a ממלכת כהנים וגוי קדוש We are distinct from the rest of humanity. הן עם לבדד ישכון ובגויים לא יתחשב.

As American Express says: Membership has its privileges. And it also has its obligations. Comes with the territory.

Membership also has its definitions. Exactly who counts as being a Jew? And are there different types of Jews? Some more Jewish than others?

Here is where the lines start to get blurred.

Every normal human being wants identity and “status”, a sense of belonging and entitlement. Although most human beings do not care to be Jewish, and many are those who do not consider being Jewish an enviable status, there are exceptions. There seems to be a growing number of outsiders who want in. Many of these people claim that they already have some entitlement to the status, they only want it to be acknowledged.

Why?

Because we look at this status as something precious. Something that we want to have and we don’t want to lose.

And sometimes there is even more at stake.

Love and family.

One of the central taboos in Judaism is what we call intermarriage.

Why is it such a taboo?

Because intermarriage causes us to compromise on our Jewish identities. For the intermarried people themselves, this compromise may be only in practice, but for their offspring, it may be for keeps.

What is intermarriage?

Most of us (the “consumers”) will give an answer that falls short of the mark. They will say: Intermarriage is when a Jewish person marries a non-Jewish person.

That’s how a “consumer” thinks.

A Torah Jew thinks differently. An alert Torah Jew will answer: Intermarriage is when a Jew marries someone he (or she) is not allowed to be married to – even if the spouse is also Jewish!

Because, as I was intimating above, there are different types of Jews!

The Mishna in the last perek of Kedushin presents the list:

Ten types of pedigree [were assigned when the Jews] returned from the Babylonian exile: (1) Kohen – (2) Levi – (3) Yisroel – (4) Chalali – (5) Giri (converts) ­– (6) Charuri (freed servants) – (7) Mamzer – (8) Nesini – (9) Shetuki (father unknown) – (10) Asufi (foundling).


A Kohen can only marry women in types 1-3. Any other type is forbidden and can be considered intermarriage.  Men in levels 2-4 can only marry women from types 1-6 (a woman from level 4 cannot marry type 1 - Kohen).  Anything past type 6 is forbidden and can be considered intermarriage. Those in levels 5 and 6 can marry anyone from types 2-10. Levels 7-10 can marry spouses from levels 5-10 but not higher.

What we learn from this is that types 1-4 can have nothing to do with types 7-10. Types 1-4 are what is known as Kehal Hashem. The good guys. Types 7-10 are what is known as pasulei Kehal – “untouchables”. You can add to those a ger Amoni or Moavi or first or second generation Egyptian. Types 5 and 6 are known as Kehal Geirim, which does not have the stature of Kehal Hashem but are not pasulei Kehal. Since the pasulei Kehal are only forbidden to Kehal Hashem, they can marry with Kehal Geirim. As a result, a ger tzedek can marry almost anyone except a genuine Kohen.

There will be a quiz on this tomorrow.

So, now we know two types of intermarriage. The first is the standard Jew marrying non-Jew scenario. But it’s not all that bad. We can control the damage. Half of the time, the offspring is a level 3 Jew regardless. For those who are not, if they want to be Jewish, they still have the option to convert and come in at level 5. The next generation goes to type 3 and can be married to a Kohen.

The second type of intermarriage – Kehal Hashem folks marrying pasulei Kehal folks – is a catastrophe. All the offspring go pasulei Kehal. For generations. No end in sight (except for the Egyptian).

The pesulei Kehal is a raw deal. These folks can’t get out of being Jewish and have all the restrictions, but not all of the privileges. They can only marry from a very limited pool. Of course, the Kehal Geirim is available to them but they don’t get many takers because the offspring are still listed as pasulei Kehal.

While we are discussing pasulei Kehal, there are two other types of intermarriage that we need to discuss. I will stick to the term “intermarriage” even though, technically, a real marriage will not take effect. What I really mean is “marital” relations.

One is an “intermarriage” between two people who not only are full-fledged Kehal Hashem Jews but are even closely related – incest. Relations of a man with his mother, grandmother, [ex] mother-in-law, daughter, granddaughter, [ex] daughter-in-law, sister or aunt. In each case, each participant is fully type 1-4 Kehal Hashem but any resulting offspring is pasulei Kehal.

The exact same condition applies to the final (and more common) scenario – “intermarriage” between a man and a woman who is Halachically married to somebody else. This sometimes occurs within the context of real marriage when a woman, and/or her current husband, are not observant of Halacha and are either not aware of her Halachic status, or they are aware but are not aware of the ramifications of it. Again, each participant is fully type 1-4 Kehal Hashem but any resulting offspring is pasulei Kehal.

After we know all this, we are left with two unshakable axioms:

·       Nobody who truly wants to be Jewish, wants to be non-Jewish. (We all want to be on the "Whitelist")

·       Absolutely nobody who is Jewish wants to be a pasulei Kehal. (No one wants to be on the "Black List")

A non-Jewish person who wants to be Jewish and is sincere about it always has the option of undergoing geirus and entering level 5. But, there are those who don’t want to go that route and want to establish themselves as [heretofore unknown] genuine Jews. 

Why?

Well, one obvious answer is that if one can attain a genuine 1-4 Kehal Hashem status, why settle for less?

Another answer is that in many cases, the person in question is a woman who has children. If such a woman is unequivocally Jewish, then so are the children. If she is unequivocally non-Jewish or in a genuine state of safek, so are the children. For the sake of the children, we must do our best to iron this one out.

A third answer is a bit ironic. For a non-Jew to become Jewish by true Halachic standards, the non-Jew must make a diehard commitment to observing Shulchan Aruch. If he/she cannot bring themselves to do that, we send them back to the ashram. And if they are caught breaking the rules after the fact to the extent that we suspect they never really committed to them, their geirus can be annulled. Conversely, if one can establish proper Jewish ancestry, they get their membership cards with no further questions asked. Even though they are still just as obligated, we cannot force them to live up to their Halachic obligations. They won’t be kicked out of the club.

Lastly, those of us who live in Eretz Yisrael are aware that this status can spell the difference between being eligible for automatic citizenship or not being eligible.

Consequently, in today’s world, and after centuries of galus, total havoc, forced conversions, and widespread non-observance, many Batei Din in Eretz Yisrael are feverishly working to help people establish that: (1) They are Jewish and (2) they are not pasulei Kehal.

But, as we saw, there is a big difference between the two. Being Jewish is beneficial. It is something we want to establish. We will make a l’chaim if we are successful. Being a pasulei Kehal is detrimental. It is something we don’t want to establish. We only make a l’chaim if we can successfully rule it out.

As a result, we play the game a little differently in each case. In either case, solid proof is solid proof. Unfortunately, solid proof is very hard to come by. Most of the time we need to rely on “circumstantial” evidence. Since our ultimate goal is to help people and not to hurt them, we tend to be discriminatory about what circumstantial evidence we accept. Thus, is many situations, circumstantial evidence which is strong enough to help somebody attain the status of being Jewish is not strong enough to bring them to a state of pasulei Kehal.

So, how do we determine status?

Let’s start with establishing Jewishness.

We who adhere to shas and poskim adhere to the guidelines that are set by shas and poskim. If one is (a) known to be Jewish and (b) claims to be born to a woman who was known to be Jewish and (c) has always lived as a Jew, this is the ticket and we usually take them at their word. If one is missing any of these three attributes, his status is at least questionable and must be verified.

And how is this accomplished?

Rashi in this week’s parsha (last week's if you live in E”Y), quoted above, lets us know how it was done for three millennia. He writes: Each person brought their family trees and birthright witnesses…

Until very recently, this is all that we had to go by. We had to dig up town records and evaluate prevalent Jewish names – first and last – and ask old timers for their memories. Very tedious, costly, and unscientific. And, after all this work, just hope that the Beis Din or Rabbanut will be satisfied.

About thirty years ago, the world was blessed/cursed with a groundbreaking innovation which greatly reduced the tedium and the cost but was still unscientific. Genealogical Databases. Along with the Internet that makes these databases accessible.

There are some official ones and some recreational do-it-yourself ones (Geni.com) and many, many private archives that have been uploaded to the Internet. Thankfully, the Internet, despite all of its issues, has become a treasure trove of historical information that has filled in lots of missing puzzle pieces and sometimes can be corroborated by cross referencing. I am not so much amazed by what I discover if I Google up my own name as much as what I have discovered by Googling up the names of some of my ancestors going back 100 years and more. Information that one never dreamed could still be in existence today not only may exist but it can even show up on the Net. With more being added all the time.

All this is a 21st century version of the “family trees” that people used to have and utilize 3000 years ago. The material is just as valid. I am certain that many people were helped by this influx of information that can be accessed by the click of a mouse from one’s private chambers and I am happy for them.

But, I wonder, is all this readily available genealogical information helpful 100% of the time? Has it ever created problems?

What happens if someone who had always considered themselves to be Jewish checks up an ancestry database and finds out that some great grandmother came from a town in Hungary, France, Croatia or Sweden (or wherever) not known for a community of Jews and had a name that couldn’t possibly have been Jewish? And there is no indication of conversion? And the great grandfather she was married to was the black sheep who left the community?

And what if some laid-back self-assured Jew inadvertently discovers that some grandmother or great grandmother was previously married and divorced before the marriage that produced him (or her) and there is no indication or much of a likelihood that she got a get?

A little knowledge can be a dangerous thing.

Personally, I am not aware of any such happenings (why should I be?) and don’t know how much of a concern this is. It could be that, in the spirit of HRHG Rav Moshe Feinstein, ZT”L, we will say that if the person already had a “chazaka” of being Kehal Hashem and not pasulei Kehal, this information will be totally disregarded. Let’s hope so.

Still, it can be devastating to one who does not have such a “chazaka”. And, even for one with a chazaka, one who discovers this information will know it and need to live with it – chazaka or not. This is a very, very scary thought.

And with this thought in mind, we will take the next step.

The time has come to discuss a more cryptic type of family tree that has only become available to the public over the past decade or so – DNA code mapping.

At last there is a technique that can be called “scientific”. The technique is still in its developmental stages but it is seen to be accurate enough in some situations to lend a supporting weight to whatever other circumstantial evidence is available. So the question becomes: how much weight does it have?

As we know, this is currently being scrutinized by the poskim of our time. The sad thing is that most of the “heavyweight” poskim of the previous fifty years are no longer with us, and today’s poskim, although some are very great Talmidei Chachamim, do not have the universal backing that those of the previous generation had. I am unsure if there is a single posek today that is respected by a “super-majority” of our fractured nation.

One inherent problem is that DNA coding is a language in itself that is only understood by DNA coding experts. It is not something that you or me or any average person can read for themselves. There will always be an aspect of עד מפי עד and we need to be able to trust the interpreter that the code says what he says it says. A similar issue is that whatever percentages or probabilities or statistics for accuracy (i.e., 80% probability, 40% probability) that is claimed by the interpreter or promoter of the technique is not subject to scrutiny by anybody else. There is no way to check for errors in the reports. Add to this that these folks get income from this industry and have a financial interest which further erodes their reliability.

There is no need for me to elaborate on this and, very admittedly, this science is way over my head. (And, as usual, part two of this post is the more controversial part that I really want to discuss.) I refer my readers to listen to a fascinating Headlines podcast on the subject that was aired by Reb Dovid Lichtenstein on April 13, 2019. The podcast can be found HERE.

The podcast reveals that there is a growing acceptance for incorporating DNA coding to determine issues of yuchsin. I thought the podcast was very informative and inspiring (it certainly inspired this post) but it left me disappointed. The title of the podcast is:

Genetics in Halacha; can we determine who is a Jew? Resolve mamzer cases? Be used in Beis Din?...and much more…

Actually it had much less. I think it fell short in two departments:

1) The podcast presented the viewpoint and Halachic perspective of a number of Rabbanim who support its usage in determining Jewishness. It did not mention at all if there are vocal opponents to using it (I have no idea, personally) and what their objections are. So, on the question of whether it can be used in Beit Din, it only presented one [favorable] viewpoint.

Perhaps there are no opponents.

2) The second shortcoming is that it didn’t finish the job. The title promised us a discussion on using genetic testing to “Resolve mamzer cases”. The only thing in the podcast that related to mamzer cases was a statement that we only use DNA coding to help a person’s status, but not to hurt them.

This is encouraging but a little bit short sighted. If somebody who is suspected to be Jewish cannot get their case happily resolved, there is nothing really lost because the person was not known to be Jewish until now. What’s more, the road to geirus is usually open. It is helpful but not critical.
Mamzerus is a bit different. Firstly, we are discussing somebody who we know to be Jewish. This alone raises the stakes; a Jewish person must know where he’s at. Moreover, if a Jewish person who we have reason to suspect of being a mamzer really is one, we are playing with issurei Torah. We cannot dismiss it so quickly.

Interestingly enough, we also need to deal with a case where, let’s say, a non-observant woman who was Halachically married took up with another man of unknown origin and became pregnant. The father-to-be is not known to be Jewish but we have a strong suspicion that he may be (note - only a Jewish adulterer produces a mamzer). Here, the exact same DNA testing which we would gladly accept under normal circumstances to clinch his status as a Jew will now cause the child to be a mamzer. Do we now say that this coding is unreliable?

What if this paramour has a sibling who wanted to establish his or her Jewishness and used DNA testing and was approved? This fellow does not want to be tested or to be called Jewish, but his married girlfriend is carrying his baby. And if he is a true “member of the tribe”, is it not our responsibility to “Jewish” him up? What’s the deal? (And don’t forget Avos u’Banim!!)

Believe me, this is just the tip of the Eisenberg.

Have we opened a can of worms?



Enough of the White List. Stay tuned for Part 2 - the Black List…