Identity Crisis

Many of us who read A Tzaddik in Our Time, the fascinating biography of the great Tzadik, Harav Aryeh Levin, ZTL, are inspired by the story of the Goral HaGra – the Vilna Gaon’s “draw”. 

As of November 29, 1947, the settlements of Gush Etzion were isolated and blockaded by Arab marauders. In January 1948, a group of 35 Palmach fighters set out on a mission to penetrate the blockade and to deliver supplies and medicine to the besieged Jewish settlers. Greta Thunberg was not one of them. Before they could sneak through, the group was spotted and attacked by the vicious Arabs. Every single one of them perished in the battle. Twelve of them were mutilated beyond recognition.

These were the days before forensic identification techniques, such as dental records (if these martyrs had any) and DNA profiles. There was no scientific way to determine the identity of any of the twelve bodies. The Chief Rabbi, Rav Zvi Pesach Frank, ZT”L, was consulted and, for lack of any natural, earthly solution, he determined no alternative but to rely on Divine assistance. Hence, he called upon Rav Aryeh Levin and some other Rabbanim to undertake a Goral HaGra. 

The Goral HaGra is a Kabbalistic method of following a preordained method to access a random pasuk in Tanach, and to draw conclusions from what this special pasuk says to us. I am sure it predates the Vilna Gaon but, for some reason, he gets all the credit.

Indeed, Rav Aryeh Levin carried out the procedure and, in a miraculous fashion, each one of the pasukim contained a reference to a specific member of the fallen. You can get more details of the story HERE.

Fast forward a mere 76 years and we are now, both sadly and happily, seeing bodies of fallen Jews being transported to us out of Gaza courtesy of those who murdered them. All of these bodies need to be positively identified. As such, they are immediately transferred to the Abu Kabir forensic institute to be positively identified using natural scientific methods. We know that the standard methods are to compare dental records and/or DNA profiles. As it stands, B”H, within a matter of hours, we are getting absolute results. No Goral HaGra needed.

Is this a good thing or a bad not so good thing?

What is preferable – DNA profiling or Goral HaGra? Moreover, what is more reliable? Why aren’t we doing the Goral HaGra instead, even on our current victims?

The obvious answer is לא בשמים היא. We are not permitted to rely on a Bas Kol or any Heavenly sign as long as there is any empirical alternative. This sort of tells us that if we have resources such as DNA profiling at our disposal, it’s a “mitzva” to make use of them. Also, it indicates that we are authorized to rely on the results.

אין לדיין אלא מה שעיניו רואות.

In some of my previous posts from July and August 2019 (see all the posts HERE), I advocated the use of DNA profiling for any dilemma that it can help resolve. I believe that even if the DNA test results will force us to classify a person as a mamzer, we are obligated to use it. 

Here is an excerpt of what I wrote on August 25, 2019:

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 and surveillance, 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 may not have fully substantiated my position, but my primary motivation is that honesty is the best policy. In other words, if the facts are true, then the facts are true. What is, is. The seal of HKBH is emess – truth, and he doesn’t want us to hide it and sweep it under the rug. 

Yes, the truth hurts but falsehood hurts worse. 

Clearly, one of the Torah’s intentions for the decree of mamzerus is to deter people (especially married women) from fooling around and destroying their marriages and relationships. It’s for the greater good even though there is a steep price to the seemingly fault-free offspring.

Seemingly?

In a more recent post from August of 2024, I discussed the concepts of gilgulim (reincarnation) and tikun ha’neshama and I brought down two anecdotal sources, including an embedded video, presented by two NDE survivors, that claim that a person’s soul chooses the family that he or she will be born into and the ordeals he or she will have to undergo. 

Bluntly, this means that if someone was born a mamzer, they “knew” about it “up front” and accepted the challenge. It was pre-ordained. If so, why circumvent it by covering the truth? It may be that such a thing can actually hamper a person’s tikun. Perhaps, sparing the person from the inherent (literally) shame and ostracization is doing him or her a grave injustice!

In those previous posts, I deliberated on whether to consider DNA profiling as absolute eidus or merely an umdenah d’mukchach (or a siman muvhak). In recent years, however, I have become a more ardent believer in DNA profiling. I am ready to upgrade it to eidus gamur.

I have allowed myself to watch a number of forensic science documentaries. Assuming these documentaries are factual, then DNA is uncannily accurate. The clips show how today’s DNA profiling has helped solve numerous cold-case homicides. With this, the detectives were finally able to identify the true culprits and, in many cases, to exonerate others who were wrongly convicted. 

Other clips have shown how people who know very little about their family background and even who have no idea who their biological fathers are to discover the truth. Sometimes the findings were pleasant, a relief, and closure and brought about reunions with hitherto unknown relatives. Of course, in other cases, the results uncovered hidden secrets and brought shame and disaster. Still, when confronted with the “evidence”, the deceit was usually confirmed. Ultimately, the truth was pieced together and couldn’t be denied.

As a consequence, I personally have a lot of faith in the results of DNA testing, especially when carried out by very reputable labs. I believe it belongs right there alongside ABO or HLA blood typing and fingerprint mapping. This is especially true when the results can be confirmed by two independent labs. There is hardly any margin for error.

It goes without saying that one of the most popular uses of DNA testing is to confirm or rule out paternity in cases of doubt. This was the theme of my blog posts in July and August 2019. This is so common that it is almost a standard in most Western countries. They say that in the United States, about 30% of children, roughly 1 in 3, are not the biological offspring of the man who is claimed by the mother to be the father.

Usually, the mother knows this for certain or at least suspects it. Yet, they go to great lengths to hide this knowledge from both the significant other (i.e., husband, but not always) and the child. Usually, it is because the woman wants the artificial father to stay in her life and to provide for her and the illegitimate children. This is known as paternity fraud, and it is widespread.

When the man in question is suspicious and demands a DNA test, the unfaithful mother usually fights it tooth and nail. Of course, this behavior only amplifies the suspicions and, ultimately, it doesn’t help her. If the quarrel is in court, the courts will typically order the test. Even if it is not a court battle, the father has much recourse to have the tests done on his own. 

If she can sneak behind his back, he can sneak behind hers. What’s good for the goose is good for the gander. 

In our frum circles, we are much better behaved so paternity fraud is, B”H, not a common or communal issue, though I suppose it happens occasionally. But in the non-Orthodox circles, it is still plenty common (R”L) and Batei Din – who deal more frequently in non-Orthodox cases, BTW – have to confront it all the time.

In my post back in July 9  2019, I wrote the following:

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.

I went on to explain how much trouble this causes regardless of whether it helps the subject out of a status of mamzer. I questioned whether the upside is really an upside and if, in any case, they are worth the drawbacks of the downside.

Let’s now get up to date.

In the secular world, DNA profiling has become so accepted and such a factor in resolving paternity issues that there is rumbling about drafting laws to require mandatory DNA paternity testing in all hospitals as a matter of course.

Currently, there is no such law on the books in any US state or even in progress. As one can imagine, there is a lot of pushback from the unfaithful liberals who, as always, want to have their cake and somebody else pay for it. It’s American as apple pie.

The State of Tennessee, however, recently passed two preliminary types of laws. One from 2023 is to declare paternity fraud a crime. This one is long overdue. As far as I could research, it is not considered a crime anywhere else. This is incredible.

The other one from 2022 removes a five year statute of limitations to challenge a paternity case. I think any statute of limitations for something like this is absurd unless it can be proven that the father in question was fully aware of a question of paternity at an earlier time and did not act.

I suppose that if all your exes live in Texas, it pays to hang your hat in Tennessee. 

There are those who suggest that it doesn’t need to be compulsory. If the alleged father doesn’t want to submit his DNA and prove paternity, it may be unconstitutional to force him to, just like all the vaccine mandates were supposed to be. But a more watered down version may be a mandatory law to record and store just the baby’s DNA. All babies get blood tested for various reasons anyway so it can’t be called invasive. Hence, if a father, at any time later on, wants to confirm his paternity, the DNA is there in a national database.

What does this have to do with us?

Well, anything that turns into a law of a land affects all the inhabitants of that land. This includes us. Personally, I am in favor of such a law and there is no reason it should affect the faithful among us.

The question is, if such a thing will become a standard in the hi-tech industrial Western world, will it have to be adopted here in Israel? After all, we cannot be less advanced and progressive than everyone else, can we?

Interestingly, on this issue there are reasons why the lefty liberals might be against it and there are reasons why the Orthodox Jews (Chareidim?) and the Rabbanut may be against it. So, perhaps, both sides will join forces as they have been doing until now to sweep it all under the rug.

Yet, we are living in a pre-Moshiach era where all of the world’s dark secrets are being exposed, just like what happened during the ten plagues and Makkos Bechoros. At the end of the “day”, all falsehood will be demolished, and the truth will shine through. 

Or else, we can always try to do a Goral HaGra.

 

Parshas Breishis: In His Likeness and Image - A Challenge for Shlomo Hamelech

 

    ויחי אדם שלשים ומאת שנה ויולד בדמותו כצלמו ויקרא את שמו שת    

And Adam was 130 years old and he fathered in his likeness and according to his image.

Parshas Breishis teaches us the “way of the world”. How the world was created, how mankind was created, and how we are meant to replicate ourselves.

The Navi (Yeshaya 45:18) tells us that a primary mission of creation was for all mankind to reproduce.

כי כה אמר ה' בורא השמים הוא הא-להים יצר הארץ ועשה הוא כוננה לא תהו בראה לשבת יצרה

For so says Hashem who created the skies, He is the G-d who formed the earth and made it, He established it - He did not create it to be desolate, He formed it to be inhabited.

And we all learn, some way or another, that there is a very natural way to accomplish this mission.

והאדם ידע את חוה אשתו ותהר ותלד את קין 

And the Adam knew (was intimate) with his wife Chava and she became pregnant and gave birth to Kayin.

This two-makes-three system is a total marvel. So much so that I see it as absolute proof that G-d created the world. How could such a complex multi-faceted system evolve by “accident”?

As an aside, for decades, I have been continuously perplexed about how evolutionists can even begin to explain this phenomenon. I Googled it up now (and I have done it several times in the past), and I still can’t get any clear answers. There is talk about why sexual reproduction is beneficial and when it originated (about two billion years ago) but every serious site seems to dance around the subject of how it originated.

One site seems to portray a very objective essay on this question. You can see it HERE. The following excerpts are the main points from the Conclusion:

Darwinists are no closer to solving the origin-of-sex problem today than they were in Darwin’s day. The advantages of sexual reproduction are well-known, and include the production of enormous genetic variety compared to asexual reproduction...

 

Theory aside, sexual reproduction is almost universal in the higher plant and animal world, even if evolution cannot explain it in Darwinian terms. This serious gap in evolution was largely ignored by Darwin, and by most evolutionists today, because they have not been able to propose even plausible “just-so” stories to explain the evolution of sex. Like many difficult evolutionary questions, the best strategy is to ignore the entire problem, which is what evolutionists have done. ... The problem of how reproduction occurred before both systems were evolved concurrently has never been answered.

 

The peer-reviewed literature effectively documents the fact that the evolution of sexual reproduction is a major unsolved, and unsolvable, problem for evolution. The former editor of Nature, John Maddox, writing about the question of when and how sexual reproduction evolved, stated that “Despite decades of speculation, we do not know” how sexual reproduction evolved (Maddox 1998, 252). This classic study of the origins of sex concluded, “how or why sex [evolved] is a deep mystery” (Judson 2002). As Professor van Rossum has concluded, “a salient characteristic of living beings, sexual reproduction, defies Darwinism, and [is] not based on an improbability, but on an impossibility of explanation” (van Rossum 2014, back cover). The fact is, evolutionists admit that they are perplexed about the whole question of [origin of] sex (Eckholm 1986, Section C, 1).

So we have a marvelous system of reproduction. But it doesn’t only get us here. It also gives us families and “clans” together with family identities and family traits. It let’s us know who we are and what our outstanding traits are as well as our vulnerabilities. We call this ethnicity. We also call it genetics.

The Torah calls this בדמותו וכצלמו  - in their likeness and according to their image.

Along with this ethnicity, it gives us a sense of belonging. As we say, “Blood is thicker than water” or “We can pick our friends and we can pick our enemies, but we can’t pick our relatives”. Another related maxim is, “Home is the place where they have to let you in.” I, you, or he is a descendant of this or that ancestor. We are one of the bunch, a MOT (member of the tribe), blood relatives. Nobody can change this.

It’s in our genes.

Along with this comes the motherly instinct and maternal love. When a woman carries a fetus in her body throughout gestation, she is naturally bonded to whatever comes out. No matter what.

This is the upshot of natural, biological reproduction; and this is how it was meant to be. And this is what all of us want. We do not only want offspring, but we want our offspring to be like us – in our likeness and according to our image. We want them to carry our genes.

Most of us are blessed to be able to reproduce naturally without much effort and without any intervention. Sadly, there are a select few who are not so fortunate. For this group, the road to reproduction may be long, arduous, emotionally draining and prohibitively expensive.

For some, any type of natural reproduction is virtually impossible. If they still want to be parents, their only option is to adopt or foster children born of others. They can be parents and have quasi-offspring. But they will not be in their likeness and according to their image.

Others suffer from conditions that make conception or gestation difficult but are still able to reproduce with the help of modern medical intervention. If things work out, they can have the natural genetic offspring that everyone wants.

A common and widely practiced method of medical intervention is to combine the actual seed from the male and female in a laboratory procedure and induce conception outside of the womb. When successful, an embryo develops and is reimplanted inside a willing female. This is known as in-vitro fertilization or IVF.

Many married couples resort to this method wherein the female seed (egg) is extracted from the actual wife and the male seed is extracted from the actual husband. The resulting embryo is a true genetic biological offspring of this very couple with all the requisite likeness and image and ethnicity. Typically, all parties are overjoyed and continue life as any natural family. Also, although there may me some collateral Halachic questions when Jewish people need to do it, the technique itself involving the actual seed from a kosher Jewish husband and wife for their own use is not a question at all. It is a blessed undertaking.

It doesn’t always happen that way.

We all know that, medically, it is not necessary for the woman seed to come from the actual wife nor the male seed to come from the actual husband. Medically, any viable woman seed and any viable male seed will do the trick. Indeed, for many couples, there can only be successful IVF if the seed of one or parties is obtained from an outside source. Any non-Jews and irreligious Jews go this route. For us Torah observant Jews, it opens up a big slew of Halachic issues.

The primary issue is in a case where the male seed comes from an outside source if such a thing can me permitted at all. Can a married Jewish woman knowingly artificially implant the seed (or an embryo seeded) by another man?

But even if the embryo is the husband’s seed and another woman’s egg, or if it was the seed of another man and was implanted nevertheless, there are a myriad of Halachic concerns. I voiced these concerns in one of my previous posts about the subject of DNA testing for mamzeirus. What is this baby’s status for geirus, kahuna, yichus (mamzeirus), mitzvos Kibud Av v’Em, yerusha, yibum and chalitza, bechorah, and more.

All of the above relates to a couple that knowingly implanted such an embryo with the blessings of the relevant outside donors – who are usually totally detached from a relationship with this offspring. But what if the IVF from outside sources was a mistake? What if this couple successfully created an embryo from their own seed but the wife was implanted with a different one from another couple who did the same? 

 

Who gets custody of the baby?

https://www.timesofisrael.com/court-orders-genetic-test-to-identify-biological-parents-in-embryo-mix-up/

Apparently, this is exactly what happened here in Assuta Hospital about eight months ago. The wife of a couple who seemingly had a viable IVF embryo of their own was mistakenly implanted with an embryo that was not theirs. So far, it hasn’t been pinpointed to whom the embryo belongs, but it seems to have been confirmed that it was not that of this couple.

This means it is the genetic biological issue, and the likeness and image of other people. Yet this woman is carrying it and will, IYH, give birth to it. Very soon.

Who are the true parents of this child? Who gets to keep the baby? (Note – we are talking about conceptionally challenged couples who invest much blood, sweat, tears, prayers, and probably a ton of money into their treatments.)

This question will certainly be looked at from a legal perspective. The article states that the pregnant “mother” has thus far refused to have the fetus genetically tested and has no intention of relinquishing custody to anybody else without a court battle. No telling where this one will go in Israeli court.

The important thing is that, at long last, the Israeli court indeed ordered a genetic test. Personally, I think this is the right move.

Of course, my mandate is to look at this from a Halachic perspective. If this would go to a Beis Din (note- I have no idea if either of the couples are religious or even Jewish), who would Beis Din give custody to?

I think this is a tough one that would even perplex Shlomo Hamelech. The old wave the sword trick isn’t going to work here. And duct tape won’t fix it either.

On the one hand, as I wrote in my previous series, Beis Din is not too keen on letting genetic testing establish Halachic status over the basic guidelines we have employed for generations when such testing wasn’t available. Of course, in those generations, IVF wasn’t available either. As such, many opinions will say that the mother who carried and birthed the baby is the halachic mother, at least for geirus purposes, and consequently should be entitled to keep the baby.

I believe there are other Halachic opinions on this, as well.

The bigger question is, would Beis Din be agreeable to undergoing genetic testing at all?

They almost never allow it in a case of potential mamzeirus, but if we are dealing with two properly married couples, the issue of potential mamzeirus should be off the table (I think). If so, why not allow genetic testing?

What does genetic testing establish anyway in Halacha? Would the results be considered eidus? Umdenah d’mukchach? Raglayim l’davar?

Another interesting question. The only thing that is established is that this embryo did not issue from this couple. They are [currently] “benefiting” from an embryo paid for and produced by another couple. Assuming that we know who the other couple is, are they not obligated to cover the expenses put out by the other couple?

I certainly believe they are. See Choshen Mishpat 375.

Would a genetic test that identifies the real biological parents be sufficient to enforce this claim?

If so, is it fair for the couple to withhold genetic testing in order to evade this obligation?

To resolve these questions, let’s look at how this problem is being handled in court. I know nothing about the details of the court order and what the arguments were that made it take until now (the baby is almost due) nor of the court's considerations in its ruling. But I do know this. In Israeli court, one factor overrides all other factors in child custody disputes: What is the best interest of the child.

The secular world does not recognize biological parents. There are only “legal” parents. However, in most normal cases, the biological parents are the legal parents. Where some other people are designated as the “legal” parents for whatever reason, they have all the trappings of parents and the biological parents are out. As such, the issues of yerusha, bechora, Kibbud Av V’Em and yibum are non-issues to them.

Left to this alone, the courts may feel it is best for the kid just to stay where he is.

On the other hand, the courts don’t have the rules of eidus and motzi m’chaveiro alav haraya (burden of proof) like we have in Beis Din. To them, genetic testing is eidus gamur and if a couple who is very likely to be the real parents want to sue for monetary damages, they can win with genetic testing or circumstantial proof that the child is theirs. Thus, if another couple, or a group of couples, demand them to undergo genetic testing for this purpose and, since this is not a question of mamzeirus, the court will not seek approval from the Rabbinate.

If another couple is positively identified as the true biological parents, then the court should be practical and use common sense (though I wouldn’t bet on it).

In this case, the biological parents who are positively identified will not be quiet. They will make noise and court cases and demand a part in this child’s life. And, as being the true parents who invested so much to have their own child, they will never give up. Ever. This child is in their likeness and according to their image.

We can assume that every child truly wants and deserves to be raised by his biological parents and to be a part of his clan and to interact with his blood relatives. The child in this case will certainly be aware that there was a mixup at the lab and he was implanted into his non-biological mother. He will also know that his biological parents want him and always wanted him and fought for him and they were denied the opportunity to raise him.

This is the worst thing that can ever happen as a child. Personally, I see this as a recipe for long-term emotional trauma which can lead to a dysfunctional life at best and depression and suicide, at worst.

All this is in a case where the biological parents can be positively identified. And, especially in the courts, they can certainly be positively identified with a genetic test.

In the current story the birth mother was refusing, and the court has just now ordered it. The court may have asked itself - Is it fair to the child to withhold genetic testing from him/her and deny him/her a relationship with his/her biological parents, extended family, and not to be aware of his heritage and family medical conditions when necessary?

Let’s just go one step further. It is a sure thing that at some point in the future, the kid will discover that his parents are not his biological parents. He will grow to be an adult and, faced with uncertainty in his life, the odds are that he will all on his own take a genetic test to find out the truth.

What happens then?

Clearly, at least from the perspective of the court, it is in the best interest of the child to be genetically tested so that he /she may know the truth. He is certainly entitled to it.

Yet, after all of this, it only makes sense for the court to order the testing if they are inclined to grant custody to the biological parent. My prediction is that this is what will ultimately happen.

So, let’s get back to Beis Din. What would happen there?

Now that I come to think of it, maybe Shlomo Hamelech can guide us in this case. Without a sword.

Firstly, Shlomo did not open up a Choshen Mishpat and preach about  המוציא מחברו עליו הראיה. There are some cases that need to be determined by a  לב שומע, לשפוט את-עמך, להבין, בין-טוב לרע

The “birth” mother is refusing to undergo genetic testing because she wants to keep the child. Not because this is really what is best for the child. My guess is that if she were that child, she, like most children, would want to grow up with her biological family. I know I would.

Hence, she wants what is best for her. Not what is best for the child. She is a selfish person not a selfless one. She is just like the mother who switched babies in the case of Shlomo Hamelech.

Shlomo Hamelech did not only grant the child to the second woman. He also declared “She is his mother”. We understand this to be extra words with additional meaning.

What did he mean?

Firstly, there is a known Midrash that says that Shlomo didn’t really say it. He only granted the baby and it was a heavenly voice – bas kol – that proclaimed “She is his mother” to confirm his judgement as accurate.

But, if we look at the simple text, that Shlomo HaMelech said it, what was he trying to say?

What he was saying is that she was capable of being his mother. She showed the attributes of a mother that qualified her for the job even if the baby wasn’t really hers. Conversely, the other claimant clearly did not want what was best for the child and, as such, wasn’t even qualified to be anybody’s mother.

I see the same behavior here. As distressing as it is for a woman to relinquish a child that she carried, it probably no more distressing than being guilty of killing one’s own child as was the case by Shlomo. Yet, a true mother must be capable of overcoming her distress for the benefit of the child.

Once we understand all this, I think that if this case would reach the Rabbinate, Beis Din should take all this into consideration and do what is best for the child. I believe they should approve a genetic test before the child grows up and does it himself. The results would be no less than an umdenah d’mukchach. The true parents should get custody of the child and the birth mother honorable mention.  

There is a reason why HKBH created man to reproduce in their likeness and according to their image. Blood is thicker than water.

It’s part of the gene pool.

 

Yuchsin and Genetic Testing Part 4: When "Truth" Conflicts with Halacha - The Grey Zone (or Don't Ask, Don't Tell)

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.