Author’s note – This post serves a dual purpose. It is intended as the closing post of this series, but it is also a very belated introductory post to the entire topic. As I tried to cut to the chase and reach my conclusions about DNA mapping for Yuchsin, it became evident that it required a more thorough overview on the fundamental Halachos that were in effect until now. In short, one can’t discuss how things should [or should not] change with modern technology if we are not clear on how things work before this technology was available.
So I had to devote a lot of text to the basic Halachos of mamzerus before devoting a lot more text to covering the more modern issues. Of course, this resulted in an exceedingly long post. I considered cutting it into two parts but couldn’t find a place to make a clean break and, besides, I really need to close this topic and move on.
I apologize for the lengthiness. My sensors (or censors) tell me that only my most devoted readers read through my posts anyway, so I am going for broke. If you haven’t read the previous posts in this series, please see them HERE. Happy reading.
The odds are that you probably don’t know a bona fide halachically “certified” mamzer (all jokes aside). I certainly don’t.
(Disclaimer – I do have a relative in my extended family – working-class Orthodox – who is divorced from his first wife. The family gossip was that she was involved with another man and there was a son born that my relative suspected was not his. I was told that he confirmed this with a blood test. This story goes back about 25 years and the child in question would be about 30 by now. I tried to follow up to see if this person ever had his status ruled in a Beis Din and if he is married to a regular Jewish girl. I was not successful. The mother and child are no longer part of my family in any case and I do not know them.)
It goes without saying that I can’t imagine anything more devastating than for one to be labeled a true mamzer. It is a social death sentence. I don’t even think an abusive childhood compares to this. This is because one can always heal from abuse. No matter how bad it was, the door is open. But for a mamzer, there is no open door and no way to heal. Not now and not ever. For all generations.
He/she is a social leper. Chazal tell us that a leper is compared to a dead person (actually, Moshe Rabbenu said it in Parshat B’Haaloscha). And even a leper can be healed. But not a mamzer. It’s forever.
It’s one thing if one knows he is a mamzer from his early childhood. At least he is resigned. But how about if one discovers this status suddenly right when they are ready to get married? Or worse, after they are engaged (as in Case X, the chayelet) or, worse, after they are already married and perhaps have children?
What a disaster!
And it is quite understandable that this status can bring one to suicide (ch”v). If one is already [socially] dead, there is no reason to live.
And the saddest thing about all this, as we all know, is that the mamzer in question has done absolutely nothing to bring this calamity upon himself. He/she is paying the price for the transgression of his/her forebears.
So we understand that a concerned posek or Beit Din will perform extensive Halachic maneuvers and employ all kinds of Talmudic “mechanisms” (i.e., chazakos, rubos, disqualifications of status or neemanus) to declare one free of this status. It is truly a situation of pikuach nefesh.
Many of us are not aware of the basic Halachos of mamzerus. There are some surprising twists – some are good news and some are bad news. First, the good news:
We all know that if a lawful married woman has a baby from a man who is not her husband, the child is a mamzer. Well, not always. This is only if the outside man is Jewish. If he is a non-Jew, the child is absolutely kosher. Many of us don’t know this minor point. This is very helpful in a situation where the unfaithful woman lives in a region where most males in the area are not Jewish. In such a case, even if it is certain that the husband is not the father, we may be able to pre-suppose that the child was fathered by a non-Jew.
Another piece of good news is the sages established a rule that when a man and wife are living together, we can take for granted that any child is the husband’s because we assume that even if his wife misbehaves, the frequency of marital relations between him and his wife clearly outnumbers the frequency of illicit relations. This is called רוב בעילות אחר הבעל.
A third piece of good news is that in a case where we have no reason to start suspecting that one may be a mamzer and, “out of the blue”, a mother confesses to being adulterous and that a child is definitely as mamzer (she is the one who knows for sure), we do not give her any Halachic credibility.
Now, the bad news:
The Din of a Safek Mamzer:
When we do have a reason to suspect a mamzer – such as where the mother is separated from her husband, was known to be adulterous, or had previously undergone a questionable marriage or questionable divorce and subsequently took up with another man – the rules are different. And here is a very strange twist.
Even though we have a rule that a safek in a Torah law has to be ruled strictly, there is a special drasha in Kiddushin that says that this does not apply to a mamzer. The gemara says that only a definite mamzer is excluded from the “masses” but an uncertain mamzer is not excluded. The Torah allows such a person to marry a regular Jew!
Sounds great, right? But…stop the show! The same gemara immediately concludes that, “Nevertheless, the sages made a takana (ma’ala) to protect pedigree, and ruled that even an uncertain mamzer is forbidden to the masses”.
Whoa-a-a! The Torah would let so many of these people off the hook, but Chazal felt is was necessary to protect the integrity of our nation and put them out to pasture. It evolves that in the case of a safek mamzer, he is acceptable min ha’Torah and ostracized m’d’rabanan!
What makes this even stranger is that in cases where we may want to help the questionable person by calling it a “safek d’rabbanan” wherein we always rule leniently, we can’t do that in this case because the whole essence of the takana of the sages is to be machmir in a case of safek!!
So, at the end, by Torah law, the person is accepted, but Chazal rule that we need to reject him as an “enhancement” and we cannot even say “safek d’rabbana l’kula”. Bum deal!
The Din of Yakir:
A very helpful Halachic foundation is that we need valid proof that this child is indeed an illegitimate child to declare him a mamzer. Technically, it would require eidus which is a first-hand statement by two observant adult males to the circumstances that warrant mamzerus. In practical terms this is almost impossible to occur because how can two detached people be able to testify that this baby is the product of an adulterous tryst? Even if they actually eye witnessed the illicit tryst, perhaps the child was conceived at a different occasion and the “donor” was the husband or a non-Jew?
Moreover, I wrote earlier that a statement made by the mother of the child who may be absolutely certain of no other trysts is not admissible so long as there is no other supporting evidence or witnesses. All this is very helpful. BUT…
There is a special Halacha straight from the Torah which states that a husband is believed on his own without any supporting evidence to declare that one that we take to be his child is, in fact, not his child! This is the Halacha of Yakir that is understood from the pasuk in Devarim 21:17. The poskim elaborate that the husband is only believed to say that the child is not his. He is not believed to say it is the child of any other specific person. Thus, in a situation where we can pre-suppose that the real father may be a non-Jew, Yakir does not stand in the way. There is a great debate as to if a husband says a child is not his, and then another Jewish man says the child is his, does the second man have a din of Yakir to make this child a certain mamzer as opposed to a safek?
The Din of “Prutza b’yoter” or “Davar mechuar”:
If you recall earlier there is a very lenient Halacha that when a woman is properly married, we naturally assume all children are from the proper husband because he gets to her most. This goes so far that even if the husband has been away from home for up to twelve months, we still “presume” the baby is his and she must have had a delayed conception (Even HaEzer 4:14).
But, there are limitations.
In the case where the husband was away for more than nine months, we only make this liberal presumption if there is no open sign of promiscuity (davar mechuar) on account of the wife. If there is, we “suspect” mamzerus.
The next Halacha (EHE”Z 4:15) discusses the normal case of a married woman where the whole town is talking about her infidelity. We still say that her babies are kosher even if we see a “davar mechuar” unless she can be called “prutza b’yoter” (i.e., very promiscuous). In this case we also suspect mamzerus. Comes the Rema and clarifies that this is only if the mother is not available for comment. But if the mother is here and says that the child is kosher, she is believed.
This opens the door to countless obscurities. What does it mean to “suspect” mamzerus? Is the offspring allowed to marry or not?? What is the difference between a “davar mechuar” and a “perutza b’yoter”? Where does one end and the other begin? If the mother is believed to say the child is kosher even if we know she is a “tramp”, is she not also believed to admit that the rumors are true and the child is a mamzer? Note – This is not the same as a mother who “out of the blue” denounces her child, here there is a “raglayim l’davar” and we are already in the “suspect” mode. And neither of these two dinim in Shu”A seem to deal with a case of Yakir.
How does this all play out?
Well, back in the old days, before there was such a thing as blood tests or genetic testing, every case of mamzerus by way of adultery revolved around these three questions:
A.
Is the mother an eishes-ish?
B.
Are there sufficient grounds to say the
husband is not the father?
C.
If there are such grounds, is it certain that
the real father is Jewish?
As such, the poskim were able to happily resolve many of the cases by retroactively invalidating the woman’s marriage, or somebody’s Jewishness or by saying that the lawful husband is the real father “against all odds”. Thus, Rav Ovadia, ZT”L, was able to clear the girl from Detroit by employing A plus B. And Rabbi Goren, in the famed controversial Langer case, was able to get them off the hook by employing A plus C (though here it was not the real father’s Jewishness but the first husband’s) – he retroactively abrogated the first husband’s conversion, thus invalidating the first marriage.
The interesting thing is that when we can put factor A into the equation, it doesn’t matter who the real father is (unless you need it for a sfeik sfeika). The marital status of the mother is always a question of Halachic jurisprudence. A posek’s opinion is all that goes into the case, no lab technicians need apply.
But when the mother is certainly an eishes-ish, then the question doesn’t ride only on Halachic jurisprudence. It rides on the identity of the father. And here is where the dilemmas start.
Our rules of “eidus” are very strict. And the Torah tells us על פי שתים עדים יקום דבר. We need two “kosher” eye witnesses to establish anything as an absolute fact. But, do we need the facts to be so “absolute”?
It’s easy for poskim to make halachic equations on paper. And it works as long as we don’t have a prime candidate for an illicit father and as long as we don’t take a look at the kid. But what happens when Delilah admits to the affair and Shmendrik admits to the affair and the whole neighborhood knows about the affair and Shimshon believes them and the kid looks and acts just like Shmendrik and not a bit like Shimshon? (This was the obscurity question I posed earlier.)
Sure, technically a posek can disregard everything and say that nobody is Halachically reliable and the rule is that most [marital] relations are with the husband and declare that the child is מותר לבא בקהל. But we kind of “know” that this is not “the truth”.
Well, maybe we still don’t “know” for sure. But, let’s up the ante. What if we don’t have the whole regalia of two kosher eye witnesses, but we have irrefutable circumstantial evidence such as photographic evidence or reliable eye witness testimony from people who are, for technical reasons, not Halachically kosher – i.e., they happen to be related or female? And, of course, what about genetic (DNA) or other forensic evidence?
What precedents do we have?
The Shas and poskim do not talk much about irrefutable circumstantial evidence. Before photography, fingerprints and forensics, there was not much available by way of example. There is a good deal of discussion regarding missing husbands that are presumed dead and here we have a concept of “siman muvhak” – a unique identifying characteristic. So we see that for agunah situations, forensic or genetic evidence counts for something. We also rely on non-kosher witnesses for eidus isha.
The difficulty is that we are dealing in a situation where the default status of the woman is one of eishes ish (thus, an agunah) and we are trying to free her from this status. We are trying to help her, and assuming the husband is truly dead, it is to nobody’s detriment. So, paying attention to photographs and recordings and blood tests and dental records does no harm. There is no reason to close our eyes and pretend these things don’t exist.
Mamzerus is a lot different. We already said it is a veritable social death sentence. All this circumstantial evidence is going to “kill” this person. How can we accept it?
But it’s there for the taking. How can we ignore it?
What do we know about accepting irrefutable circumstantial evidence for life and death cases?
To start with, let’s discuss monetary cases. On this the only precedent we have is the story in Baba Basra 93a:
If an ox is grazing and there is a dead ox nearby. Even though the live ox is prone to goring and the dead one was gored, or this ox is prone to biting and the dead ox was bitten, we do not conclude that this ox gored or bit the dead one. Likewise if a male camel is kicking wildly (in heat) and there is a dead camel nearby, we do not assume that the wild camel killed the dead one (Rabi Acha disagrees in the case of the camel).
Rashbam suggests that there were other oxen or camels around, but these were the most likely suspects. However, most other Rishonim adamantly reject this suggestion and maintain that this is the Halacha even if there were no other possible aggressors and, presumably, even if the dental records of the ox prone to biting match the bite of the dead one! Nothing less than two kosher witnesses can cause a monetary obligation no matter how strong the circumstantial evidence. So rules the Shulchan Aruch (Choshen Mishpat 408).
Hard to say what they would think if they got the whole event on the surveillance video.
Let’s move on to life and death. The gemara in Sanhedrin 37b and in Shavuos 34a compares this case of ox-icide and camel-icide to an almost identical case of homicide. It relates:
Rabi Shimon ben Shetach said – I swear that I once saw one person chasing another into a desolate place and I ran after him and saw him with a sword in his hand from which blood was dripping and a murdered man quivering. And I said to him, “Wicked one! Who killed this man? It could only be either me or you? But, what can I do, that your fate is not subject to my testimony alone as the Torah says, ‘Upon the word of two witnesses shall a dead man be executed.’ The One who knows all thoughts will exact justice from you.”
The gemara concludes that, sure enough, Heavenly justice was swift in coming. Nevertheless, for lack of Heavenly justice, the flesh and blood Beit din is powerless.
Again we have to wonder what the gemara would say about state-of-the-art video surveillance cameras in the run down shack. For lack of such clarification, we need to stick with the default that nothing less than two live kosher witnesses will send this guy to the chopping block.
Or, is this so?
The Rambam in the second perek of Hilchos Rotzeach tells us something interesting. In Rotzeach 2:2, he talks about proxy murderers who hire hit men or sic wild animals on a person or tie them to the train tracks but don’t kill them personally, and he says that they are full scale murderers who are not subject to judicial execution. But, in Halacha 2:5, he says that even though they cannot be executed, “Beit Din must beat them to within an inch of their lives, and to imprison them for many long years, and to give them all kinds of distress…”
He explicitly is talking about proxy murderers or delayed action murder which may still mean that there are two kosher witnesses who observed the indirect crimes. Yet, would Rambam say anything different about a real first-hand premeditated murderer where there are not kosher witnesses but his guilt is absolutely proven by a hundred unkosher witnesses (let’s say women), or video surveillance or in a case like that of Rabi Shimon ben Shetach?
It’s hard to know. But, worse comes to worse, if we ignore the circumstantial evidence, we are letting a criminal back onto the street but we are not compromising the halachic status of anyone else. (I suppose we need to keep an eye on his so he shouldn’t hurt anybody else but this is common sense and not Halacha.)
Mamzerus is a more serious dilemma, because it directly impacts the community. If the person is indeed a mamzer and we “let him go” and allow him/her to marry, we are facilitating a non-Halachic marriage and the procreation of more “hidden” mamzerim. Many will argue that the psak din of “muttar lavo l’kehal” essentially erases the mamzer status but, when the “truth” is apparent, is this really the case?
Note that there are many types of scenarios of an invalid divorce in which we rule that the woman can no longer marry a Kohen. This is called “reyach haGet” (the “smell” of a get). Even though the woman was not really divorced, Chazal still apply the prohibition for a Kohen to marry her as if she really is divorced because of the “enhancement (ma’ala)” that is put into the Kohen status which is akin to the “ma’ala” that is put into Yuchsin (for mamzerus) that was mentioned earlier. If this is so, do we not also say there is a “reyach” of mamzerus?
Let’s look at the cases that we have been discussing and ask a few more questions.
Is the psak of “muttar lavo l’kehal” final?
In the case of Rav Ovadia ZT”L about the girl from Detroit, Maran was able to mattir because we did not have enough evidence that the mother is an eishes ish. The first marriage must have been about 30 years earlier and the mesader kiddushin was in Olam HaEmess. They had no kesuba and no known kosher eidim to the wedding. So with this and a side argument that the first husband was still getting in trysts with the mother (so he may be the father), he paskened she is good to go.
What if she goes and gets married and then they find the kesuba in a trunk in the attic? What if some kosher eidim all of a sudden materialize? What if the husband who wouldn’t cooperate suddenly cooperates later on and emphatically denies any relations with the ex-wife at the time the girl was conceived (remember the din of Yakir)?
Does the hetter become retroactively nullified and all resulting offspring determined to be mamzerim, or do we say “a psak is a psak”? In other words, does the person in question need to live every day of their lives in fear of the true circumstances coming to life?
RavBobliel suggested that we can invalidate the din of Yakir by saying that since the question of paternity and child support rides on it, a husband won’t be believed to say the child is not his because he has a financial stake. He is a “nogeah b’davar” and loses credibility.
Well, this may hold true until the child is eighteen years old, but there will come a time when the financial stake is no longer in effect. So suppose a husband has been saying all the time that the child is not his and we used the “nogeah b’davar” approach to reject his claim in order to save the child from mamzerus. Now, he is no longer nogeah b’davar and he is not changing his story. What happens now?
All these questions are magnified in today’s world when so many issues conflict with ignoring probabilities and genetic evidence. I mentioned them in my second post in this series: yerusha, aveilos, pidyon haben, Kohen/levi status, yibum, not to mention the interesting din of kibud Av in Yoreh Deah 240:18. In all these situations, if we can verify the status, we really need to. So, what if these things show up at our door at a later time?
And, of course, what about medical emergencies where genetics plays a role, such as if the child, a “sibling”, or one of the potential fathers comes down with leukemia (R”L) and the only treatment is a bone marrow transplant which usually are only found with close relatives?
Incidentally, we all know that HKBH has a very keen “sense of humor” when it comes to revelations such as these.
One final dilemma.
Let us say, in the face of all this, the poskim are very firm that we don’t look at anything that is not Halachic eidus. And we will employ all of our sfeik-sfeikos, chazakos, and rubos and give a “paper psak” that the child in question is “muttar lavo l’kehal” even though all circumstantial evidence indicates otherwise. Technically, they are free to marry anyone they want. And now, they are in the parsha of shidduchim. I am talking about cases like those of X, Y, and Z in my previous posts.
Do they need to inform the people they are dating of this questionable status?
In the chareidi world, we want everything to be Kosher l’mehadrin. This means kosher l’chatchila. Not subject to any doubts in the kashrut. The tefillin, mezuzos, mikvaos, and eiruvin need to be kosher to the highest standards. People who live this lifestyle will ask and investigate and, they should be able to expect direct answers. This have the endorsement of so and so but that only has the endorsement of so and so who holds from particular leniencies.
For a kashrut agency to call a chicken “Kosher l’mehadrin” it means that this chicken did not need to be brought to a posek who said that “it’s kosher b’shaas hadchak” or due to “hefsed meruba”. This cannot be called Mehadrin. And those who live by Mehadrin standards are entitled to maintain it and they are willing to pay more for it. Is a spouse any less?
In the Case X of the chayelet, she was very fortunate that the problem arose after she was in a strong relationship and the man was not so concerned that she be kosher l’mehadrin. It seems that as soon as they got the green light from Rav Bobliel a la Rav Ovadia, they were good to go.
Good for them.
But, let’s say she did not have a suitor waiting in the wings, or her boyfriend would not want to continue the relationship with a girl who is most likely illegitimate yet has a “hetter”. Does she need to inform any new potential suitor that her kashrus is not l’chatchila? Or do we tell her, “Hush up. Don’t say anything to anyone. You have a hetter. Keep quiet.”
Mamzerim are created through deceptions and cover-ups. Do we sanction more deception and cover-ups in order to protect them? Is this the ratzon ha’borei?
This is a heart-wrenching question.
The conventional Halacha when it comes to shidduchim is as follows. Any piece of information that carries a legitimate excuse to break off a shidduch must be disclosed in advance of the shidduch. Also, any information that will cause most people to turn down a shidduch must be disclosed prior to the shidduch.
The modern day teshuvos that this is based on are referenced in the Dirshu edition of Chofetz Chaim in Tziurim note 11. The cases discussed there are if, for example, the girl’s (or boy’s) father isn’t Jewish. This is where there is no question that the child is a kosher Jew. Is the Halacha any different if the child’s father admits to paternity while the mother was married to somebody else and the child needed a psak from a major posek to mattir l’kehal?
Rav Tzuriel Bobliel seems to maintain that whenever a “problem” arises, 90% of the time it can be resolved favorably within the parameters of Halacha. He seems to imply that even for many of those that we “know” are illegitimate, we can find solutions. But we cannot ignore Arthur Bloch’s famous corollary: Every problem has a solution, and every solution makes new problems.
After all is said and done, even if we sanction the “don’t ask, don’t tell” approach, is the problem solved?
My Conclusion
We are nearing the end of a long, dark galus. Many Jewish thinkers have suggested that every “galus” (exile) ends with a “hisgalus” (a revelation). Chazal tell us that b’ikvesa d’meshicha – in the preliminary footsteps of the Moshiach – “truth” will disappear in droves. But the sign of the “geula” is a gilui – a revelation. When hidden truths will be revealed.
Right before we were redeemed from Egypt there was the Makkas bechoros. The Midrashim say that in many houses lots of children died because the wives were not faithful and this child was her husband’s first born and that child was another man’s firstborn. Sometimes the oldest did not die because the husband had his first born somewhere else. I recall seeing a midrash that many husbands killed their wives in fits of rage when the death toll indicated they were unfaithful (I could not locate this Midrash anywhere – it may be a false recollection).
In better times, when there are no real witnesses, HKBH takes over. He gave us the sotah waters to check out an accused adulteress. The mahn would tell us who the slave belonged to and reveal other secrets. The Amud HaEish was like an x-ray machine. The ark of the covenant told us which of Shaul’s descendants must die and the ark of Noach told us which animals did not crossbreed. The Torah “understood” that there won’t be human witnesses to sins done in private and it gave us some divine assistance.
With all the falsehood and deceit that characterizes our generation, HKBH is beginning to level the playing field. We haven’t gotten back the sotah waters, the mahn or urim v’tumim. But HKBH gave us photography, audio and video recording, fingerprints and DNA mapping. It must be here for a reason. לא בשמים היא !
We cannot ignore modern technology. I think we need to embrace it and work with it and not against it.
I have no answers for the unfortunate plight of a mamzer. But this is nothing new. We have never had a way to comfort them for all of our generations. But it is hard to say that finding tenuous Halachic hetterim truly solves their problem. In even the best cases of “don’t ask, don’t tell” they are being sentenced to live their whole lives with a dark ugly secret for them and their offspring. And, even after a hetter, it can all “hit the fan”. The “solution” won’t automatically solve the problem. Honesty is always the best policy.
Oh, what a tangled web we weave, when ourselves we do deceive.
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