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 posek, Ovadia 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 mamzerus – pasulei 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’shuk” agunah 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