Update on Hot Car Deaths

A bit more than a year ago, I posted a special post about the tragedy of hot car deaths. I tied it into Parshat Naso. You can see the original post HERE.

The purpose of the post was to present an idea that I heard which can help reduce these kinds of tragedies. Here is precisely what I wrote:

We are all aware of hot car deaths. They are among the most heart-wrenching tragedies imaginable. Especially since they are 100% avoidable. It can happen to anyone. The most caring, conscientious, and experienced of parents (or older siblings). All it takes is a very fleeting understandable bout of absent-mindedness and one’s life is lost (a recent news item actually mentioned two twins, R”L), at least two others are ruined and a marriage, even if it survives, is irreparably damaged.

There seems to be an organization that keeps track of these incidents. You can find it HERE. They claim that since they started tracking in 1998 they have documented 749 cases in the US. Comes out to almost 40 per year. This is in the US. Here in E"Y it is even hotter and there's less shade. We are not strangers to these tragedies.

These are the known cases and these are the ones that ended badly. I am certain the number of cases which had a happier ending, but were just as perilous, is in a multiple of – who knows? – 5 or 10 times. I can even attest to perhaps two minor (B”H) incidents involving my own children under my care.

The reason I am writing this is that I very recently saw in a news write-up a very effective method of minimizing these devastatingly tragic incidents and I cannot hold back from sharing it. If it prevents even one incident, it is mekayam an olam malei.

The method is this:

When you strap your child into the car seat in the back, take something you cannot be without such as your wallet, your pocketbook, your cellphone (if you can spare it), or even one of your shoes, and wedge it underneath or behind the child’s car seat.

This way, in case you forget to drop the kid at the babysitter or nursery and go on to your personal destination, when you get there, you will want to retrieve your missing accessory and VOILA! –there’s the baby - quiet as a mouse!

A shoe is a bit awkward but is relatively fool-proof. Wallets and cell phones may still be overlooked (I have left them in my car plenty) but still you will discover it’s absence [hopefully] soon enough.

May we all have a great and safe summer and never ever hear of these needless tragedies.

Well, it happened again just yesterday in Kiryat Sefer (bDH"E). There is even legislation being proposed in the Knesset to force people to install warning devices (see HERE). 

This may not be necessary. I want to share another similar trick that somebody just sent to me. It is amazingly simple and amazingly inexpensive. It is demonstrated in a Hebrew language video but you don't really need to know Hebrew to follow it.

Please watch this:

(Note - In case the video does not show up in the email version of this post, you can see it on the actual blog site HERE.)

Of course, those of you with large minivans who keep the car seats at the back row or who don't have bucket seats up front will need to climb a little to get this done. Also you may need a longer coil. It may be easier if you attach the car seat side first when you insert the child and toss the attached keys up front. It's definitely worth the trouble.

One thing is certain, it's only going to work if it's put to use!

Now that the three weeks are here, we need to really be on guard. Please have a safe summer, and...
don't forget the kids!

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.

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