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 21^st 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…