(2015/5775)
Last week we presented part three of our discussion of the Halachic basis for the Tzefat Beit Din in their highly controversial ruling of 5774 permitting a woman whose husband is in a permanent vegetative state to remarry without her husband handing her a Get. We saw that many Posekim (Chatam Sofer, Rav Eliashiv and Rav Waldenburg) in extraordinary circumstances employ the Zachin rule and permit a Shaliach to deliver a Get on behalf of a husband who previously authorized the writing of a Get. We have seen some Posekim (Rav Meir Arik, Rav Klatzkin, Teshuvot Chavatzelet HaSharon and Rav Moshe Feinstein) who, applying the Zachin principle, even permit the writing and delivery of a Get on behalf of a husband who authorized the writing of a Get but did not appoint that particular individual to write that specific Get, as is done in a conventional situation. What remains to be seen this week as we conclude our discussion of this topic is whether there is ever a situation where Halachah permits writing a Get on behalf of a husband who never expressed interest in divorce but the Beit Din determines that it is beneficial to act on his behalf to do so, as done by the Tzefat Beit Din in 5774. We conclude our discussion this week of the Tzefat Beit Din’s ruling.
Writing a Get without a Husband’s Authorization
The idea for administering a Get in such a manner is raised by Rav Eliyahu Klatzkin (Teshuvot number 44) but roundly rejected by Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak Even HaEzer 2:64) who writes in capital letters that God forbid to follow this opinion of Rav Eliyahu Klatzkin. Rav Yechiel Yaakov Weinberg (Teshuvot Seridei Eish 2:25) and Rav Hershel Schachter (B’Ikvei Hatzon 30) also reject Rav Klatzkin’s approach. Rav Zvi Pesach Frank (Teshuvot Har Zvi E.H. 98), however, applies Rav Klatzkin’s approach as a secondary (or tertiary) support in the following case: A British soldier stationed in Eretz Yisrael (during the period of the British mandate) converted for the sake of marriage and married a Jewish woman. Soon after the marriage he reverted to living as a non-Jew and abandoned his wife. All attempts to establish contact with the soldier through the British military in order to obtain a Get from him were unsuccessful.
Rav Frank permitted the woman to remarry without receiving a Get from the soldier, primarily due to dramatic flaws in the manner in which his conversion was conducted. One problem was there was serious doubt if he was given a proper Berit Milah. Another was that the conversion ceremony was conducted entirely in Hebrew (on the day of the wedding!) and the soldier understood none of the proceedings. The lack of Kabbalat Mitzvot, commitment to observe Mitzvot, is sufficient to invalidate the conversion (see Gray Matter 4:40-49)[1].
Rav Frank, though, adds:
To be on the safe side, the Beit Din should administer a Get – a Sofeir should write a Get on behalf of the husband utilizing the principle of Zachin, witnesses should sign the Get following the Zachin rule and a Shali’ach should deliver a Get to the wife acting though Zachin on behalf of the husband.
The Tzefat Beit Din Ruling
We finally arrive at the second prong of the Tzefat Beit Din’s permitting the remarriage of a woman whose husband was in a permanent vegetative state for seven years. We outlined the first prong of possibly applying the principle of Ada’ata DeHachi Lo Kidsha Atzmah, she had no intention to marry with this outcome in mind. This possibility, argues the Tzefat Beit Din, does not alone permit the wife to marry but places her in the position of only Safeik Eishet Ish, only possibly married, thus reducing her level of obligations towards her husband.
The Tzefat Beit Din puts forth the argument from Rav Zalman Nechemiah Goldberg that the only impediment to writing a Get utilizing the principle of Zachin LeAdam Shelo BeFanav without the husband’s authorization is the concern that the Get is not a Zechut for the husband. The Tzefat Beit Din argues that Chazal, Rishonim and classic Acharonim never raise the possibility of writing a Get for a husband without his expression of a desire to divorce, because in prior generations there never was a situation where one could assume that it is a Zechut to for a husband to divorce.
Only with the technological advances of very recent decades that have created the reality of individuals living in a permanent vegetative state for an extended period of time are we faced with a situation where writing a Get involves no loss for the husband. A PVS patient in an Israeli hospital has his medical expenses paid for by the government and receives all the care necessary to maintain his life as guaranteed by Israeli law. The Tzefat Beit Din argues that the wife contributes absolutely nothing to the quality of care and the quality of care to the husband. Moreover, since she is only Safeik Eishet Ish, he benefits little from a woman whose obligations to him, such as Aveilut after his demise, are greatly diminished.
Therefore they argue that in such a case, as a second lenient consideration to permit the wife to remarry, the Beit Din may write, sign and deliver the Get acting on behalf of the husband utilizing the principle of Zachin LeAdam Shelo BeFanav. The Tzefat Beit Din cites respected Dayan Rav Shlomo Dichovsky supporting their claim citing the Sifri (at the end of Parashat Shofetim) that even the dead require merits and Kaparah[2].
“We see that even after death one needs to accumulate extra merit for protection from punishment for sins committed during one’s life. How much more so, even when one is in a permanent vegetative state he requires great merits, perhaps Hashem may on this basis restore his health. There is no greater merit than releasing his wife from her state of Igun (inability to marry).”
Severe Criticism of the Tzefat Beit Din Decision
Many great Posekim have rejected the Tzefat Beit Din decision in the strongest terms possible. Rav Moshe Shternbuch, in a scathing critique, makes the following point. Rav Shternbuch argues[3]
“It is certainly to the benefit of the husband that his wife inquires about him and visits him. The couple lived peacefully for five years and after his illness she visits him and inquires after him which is in his interest. It is certainly not a Zechut for him to be divorced from his caring wife”.
Rav Uriel Lavi, the Av Beit Din (chief justice) of the Tzefat Beit Din, defended the ruling on behalf of the court. He responds that the Beit Din appointed an attorney to act as an executor on behalf of the husband and he concluded that the husband receives no benefit from remaining married to his wife. This argument depends on whether someone in a PVS state benefits from care other than basic medical care to sustain life. It appears impossible to determine with any degree of certainty what transpires in the mind of a PVS patient, whether he is aware of visits and care from relatives. Thus, it is difficult if not impossible to conclude whether Rav Shternbuch or Rav Lavi is correct about this matter.
Rav Shternbuch expresses another criticism noting that Rav Weinberg (in the aforementioned Teshuvot Seridei Eish) rejected applying the principle of Zachin and writing a Get on behalf of husbands who converted to Islam and remained in Yemen whose wives had arrived in Eretz Yisrael in the 1950’s and that his ruling was accepted.
Rav Lavi, responds though, arguing that the cases are incomparable. Rav Lavi writes that he agrees that one cannot apply the principle of Zachin and write a Get for a husband if the husband rejects writing a Get on his behalf. In the Yemenite case, the husbands were outraged at their wives for leaving for Israel and not converting to Islam. Rav Lavi stresses that no matter how unjustified the objection, Zachin cannot be employed if the husband refuses to give a Get. In a case of a PVS husband, he obviously does not register any objection to the procedure and therefore we presume, he argues, that we act in his best spiritual interest by granting a Get to his wife on his behalf.
Rav Shternbuch similarly expresses concern for a slippery slope effect, since the Tzefat Get sets a very dangerous precedent. He is concerned that unscrupulous individuals will cite the ruling as a precedent to grant a Get on behalf of a recalcitrant husband who refuses to give his wife a Get. Rav Lavi responds that for this reason he states explicitly that the ruling does not establish precedent for such a case.
Rav Shternbuch adds that the Tzefat Beit Din ruling represents an insult to the rabbis of generation upon generation who never released an Agunah on this basis. Rav Lavi responds that husbands in a permanent vegetative state are a new phenomenon unknown to prior generations.
Rav Moshe Farbstein seeks to disprove the idea of writing a Get on behalf of the husband without his authorization from the Omeir Imru case where the husband instructions someone to tell another individual to write a Get on his behalf. The Shulchan Aruch (E.H. 120:4) disqualifies this authorization and a Get written on this basis is invalid. Rav Farbstein argues that if we cannot write a Get in this case even though we are certain of the husband’s desire to divorce his wife, how can we fathom writing a Get on behalf of a husband without his authorization altogether[4].
Rav Lavi responds that a direct appointment of a Sofer to write a Get applies only in conventional cases where a direct appointment is necessary to overcome the presumption that a husband does not wish to divorce his wife due to the disadvantages inherent in doing so. Only in such cases does the Mishnah (Gittin 7:2) apply that a Sofer and witnesses must receive instructions from the husband, otherwise a Get is invalid. In a case of a husband in a permanent vegetative state the Zechut for this husband is obvious, Rav Lavi argues, and no appointment is necessary.
Rav Farbstein also cites Teshuvot Seridei Eish who recoils from writing a Get on behalf of a husband without any authorization whatsoever, due to the absence in any precedent in the Mishnah, Gemara and Rishonim for doing so. The starkest example is the Mishnah (Yevamot 14:1) which states that a mentally incompetent individual (Shoteh) can never divorce his wife. Rav Lavi responds that the silence of these sources is due to the fact that only modern technology has created a situation where it is a pure Zechut with no disadvantage to the man to execute a Get on behalf of a husband. The Mishnah in Yevamot, argues Rav Lavi, applies only to an ordinary Shoteh such as a patient with advanced Alzheimer’s disease who benefits greatly from spousal care. One could respond to Rav Lavi that the Gemara and Rishonim present countless instances of precedent for new phenomena created by technological advances. The fact that an explicit precedent does not exist for writing a Get on behalf of a PVS patient might very well prove that Halachah does not provide for this option.
Conclusion
The Tzefat Beit Din acted boldly when it permitted a wife of a PVS patient to remarry without her husband authorizing a Get. Although it might be difficult to conclude whether the Tzefat Beit Din or its critics are correct, one may commend the Tzefat Beit Din for a conducting this Get in a fair manner. They did not rush to judgment[5] (Hevu Metunim BaDin; Avot 1:2), they visited the husband in the hospital twice to learn of the situation first-hand (Eiredah V’Ereh; Rashi to Bereishit 18:21), they thoroughly[6] explained the basis for their ruling in writing (Sanhedrin 31b and Teshuvot Mishpitei Uzziel Choshen Mishpat 1) and they received the approval of two leading authorities before they issued their ruling (as recommended by Aruch HaShulchan E.H. 17:255 when permitting an Agunah to remarry). Time will tell as to whether the decision will be accepted or rejected by the consensus of Halachic opinion.
[1] Rav Frank also mentions, as a consideration for permitting the woman to remarry, the aforementioned opinion of the Maharam of Rothenburg regarding when a woman requires Yibbum from a man who converted to another religion, where he believes we may invoke the rule of “she had no intention to marry with this outcome in mind.”
[2] The Ashkenazic practice of donating money to Tzedakah during Yizkor to elevate the Neshamot of the departed is based on this idea, see Shulchan Aruch Orach Chaim 621:6.
[3] As does Rav Yitzchak Yosef
[4] Rav Yitzchak Yosef makes the same argument.
[5] The ruling mentions that the Get was delivered on Ta’anit Esther of 5774 and that the ruling was submitted to Rav Ovadia Yosef for review in Elul 5773. Clearly, the Beit Din deliberated on this case for a considerable amount of time and did not act impetuously.
[6] The breadth of sources cited in the ruling is stunning.