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.