(2015/5775)
The State of Israel Rabbinic Court of Tzefat, on Ta’anit Esther 5774 (2014) issued a groundbreaking ruling granting a divorce to a woman whose husband has been in a permanent vegetative state (PVS)[1] for seven years after suffering a traumatic brain injury in a motorcycle accident. Normally, Halachah requires that both parties consent to divorce and that the husband first order a scribe and two witnesses to sign the Get. This Beit Din, however, conducted a procedure called a “Get Zikui”—a Get issued by the Beit Din on behalf of the comatose husband —in order to permit the woman to remarry after considering the case for many months. The court published a lengthy 93-page ruling explaining their decision. The ruling had the approval of the husband’s family and a court appointed attorney who acted as the executor on behalf of the husband.
Introduction
The idea behind the “Get Zikui” is the Halachic principle of Zachin LeAdam Shelo BeFanav (Ketubot 11a), that one party may be benefited from the actions of another even in the former’s absence—or without their explicit consent; in this case, it meant taking into consideration that it would likely be the will of the husband to grant his wife a divorce if he could, and thus he benefits from the divorce as well, even though it is being imposed without his explicit consent.
The case was heard by a panel of three Dayanim, rabbinic judges, headed by Rav Uriel Lavi. It is reported that, initially, the Dayanim sought support from Chief Sephardic Chacham Yitzchak Yosef, head of the Rabbinical Court of Appeals. But he refused, and they turned instead to Rav Zalman Nechemiah Goldberg, one of the leading contemporary Halachic authorities, who reportedly consented to the procedure. The ruling also states that Rav Shlomo Dichovsky, another leading contemporary Dayan, supports the Beit Din’s decision. The decision was shown to Rav Ovadiah Yosef a few months before his passing but he was too ill to issue a ruling[2].
In their ruling, the Beit Din acknowledged that its ruling is a “huge innovation.” Nevertheless, they seek to demonstrate at great length in their ninety-three page ruling that the decision is Halachically valid. Not surprisingly, strenuous opposition has emerged with great authorities such as Rav Avraham Dov Auerbach, Rav Moshe Mordechai Farbstein, Rav Moshe Shternbuch and Rav Chaim Zimbalist publicly coming out against the ruling in the strongest of terms. Israel’s Sephardic Chief Rabbi Rav Yitzchak Yosef also disagrees with the Tzefat Beit Din’s ruling In a fourteen page document, the Tzefat Dayanim respond to their critics.
In this essay, we shall present a summary of the arguments made by the Tzefat Beit Din as well as the response of the critics. We hope to shed light into a situation that has shaped up to be one of the most controversial cases in rabbinical courts in years.
Talmudic Background
At first glance, the Tzefat Beit Din’s ruling appears utterly shocking. The Mishnah (Gittin 7:2) states that a Get is invalid unless the husband orders the scribe and witnesses to sign the Get. This seems to preclude the possibility that a Beit Din may write a Get on behalf of a husband without him ordering the Get to be written or at least express his consent[3]. Moreover, the Mishnah (Yevamot 14:1) states that if a man became mentally incompetent he cannot give his wife a Get. The Mishnah, Gemara and Rishonim present no exceptions to this rule, creating the impression that there is no Halachic mechanism to permit the wife of an incompetent man to remarry. In fact, rabbinical judges are well aware of this Halachah and take preemptive steps such as administering a Get to avoid such situations, such as before a surgery is performed on a husband when there is a high risk of the procedure rendering him mentally incompetent.
The First Prong – ADa’ata DeHachi Lo Kidshah Atzmah
The Tzefat Beit Din, however, develops two arguments to permit the wife to remarry. The first argument, based on Bava Kama 110b, is that regarding such a situation, a woman did not consent to marry. The Gemara poses a question as to whether a woman whose husband died childless and now her husband’s only brother (who is required to perform Yibbum, marry the widow) is a Mukkah Shechin (stricken with boils) may claim ADa’ata DeHachi Lo Kidshah Atzmah, she did not consent to marry to be placed in such an untenable situation. The Gemara proposes that the woman does not require Chalitzah from the Mukkah Shechin brother-in-law in order to remarry. The Gemara rejects this proposal concluding that we are concerned that the wife is among the minority of women who would consent to marry any man, since some women believe better to marry a marginal husband than to live alone, commonly known as “Tav LeMeitav Tan Du MiLeMeitav Armelo” and “Nicha Lah BeChol DeHu”[4].
The Maharam of Rothenburg (cited in Mordechai Yevamot 29, Teshuvot Maimoniyot HaShayachot LeSefer Nashim 29 and Tur Even HaEzer 157) suggests that Tav LeMeitav Tan Du MiLeMeitav Armelo and Nicha Lah BeChol DeHu do not apply to a case which is more extreme than a Mukkah Shechin, a case of a man who converted to another religion (Mumar). Rashi (cited by Tur ad loc.) strongly disagrees, arguing that even in such a case we do not apply the principle of ADa’ata DeHachi Lo Kidshah Atzmah
The Shulchan Aruch (E.H. 157:4) cites the ruling of the Maharam of Rothenburg and rules that it is not to be followed. The Rama (ad loc.) adds that if a woman remarried without Chalitzah because she did not know her deceased first husband had a brother who is a Mumar, the opinion of the Maharam of Rothenberg may be relied upon so that the couple need not divorce[5]. The Be’eir Heiteiv[6] (ad loc. §2) cites the Radach (Bayit 9) who rules that even Rashi would agree if the Yavam Mumar lives in a location the Yevamah cannot access, that she may remarry without Chalitzah[7]. The reasoning for the Radach is that a woman has hope she may reform the Mumar, but this option is not relevant if the widow cannot access the Mumar brother-in-law.
In an extraordinary ruling, Rav Zvi Pesach Frank[8] (Teshuvot Har Zvi E.H. 133) applies the Radach’s ruling to a case where a husband became mentally incompetent (a Shoteh) after having delivered a Get to his wife. After the Get was delivered, it was discovered that the husband’s name was transliterated improperly, which seemed to invalidate the Get (Mishnah Gittin 8:5). The husband could not authorize the writing of a new Get since he became a Shoteh.
Rav Frank permitted the woman to remarry even without receiving a new Get for a number of reasons. Rav Frank’s primary consideration was that the improper transliteration in this specific case does not invalidate the Get since the error was not egregious. Rav Frank applies the Radach as a secondary reason to permit the wife to remarry. He argues that the husband becoming mentally incompetent is far worse than falling into a requirement to have Yibbum with a Mukkeh Shechin. Rav Frank on this basis suggests that regarding such a case we say ADa’ata DeHachi Lo Kidshah Atzmah[9].
The Tzefat Beit Din follows in the footsteps of Rav Frank and applies the Radach to their situation. The Tzefat Beit Din argue that since the husband cannot by any stretch of the imagination execute any of his duties to his wife that are expected by Halachah, it is most reasonable to apply the principle of ADa’ata DeHachi Lo Kidshah Atzmah[10]. However, since Rav Frank used this approach only as a consideration for a lenient ruling and not the entire basis of his permitting the wife to remarry, the Tzefat Beit Din utilized this only as the first of a two prong approach to permit the woman in their case to remarry. In addition, the Tzefat Beit Din utilizes this argument to establish that the wife is only possibly married to her husband in the PVS state due to the possibility that ADa’ata DeHachi Lo Kidshah Atzmah. This diminishes the level of obligations the wife has towards her husband since she is only possibly married to him. Thus, for example, the Tzefat Beit Din wrote that she is not obligated to mourn for him when he dies[11]. This paves the way for their argument that it is a Zechut (benefit) for a husband in a permanent vegetative state to divorce his wife, in part since her obligations to him are greatly reduced.
Rav Farbstein, on the other hand, includes in his list of complaints against the Tzefat Beit Din’s ruling the argument that since the life expectancy for someone in a permanent vegetative state is very limited, it can be expected that the husband will die in relatively short order. Rav Farbstein believes that since in this case one cannot apply the idea of ADa’ata DeHachi Lo Kidshah Atzmah, since some women, he believes, would consent to be married for five years to a man who would subsequently be incapacitated for seven to eight years. According to Rav Farbstein, applying the idea of ADa’ata DeHachi Lo Kidshah Atzmah to our case is entirely inappropriate and cannot serve even as a consideration in a lenient ruling.
Next week we will, IYH and BN, present the second prong of the ruling of the Tzefat Beit Din.
[1] Even those Posekim who accept brain stem death (BSD) as a Halachically acceptable definition of death would agree that a patient in a permanent vegetative state is not considered to be dead. Although the PVS patient’s brain is incapable of cognition (at least any observable cognition), his brain still serves as the command and control center of the body. The brain of a BSD patient is not only incapable of cognition but it also no longer serves as the command and control center of the body.
[2] Had Chacham Ovadiah ruled on the topic, there most likely would have been far less controversy, since his rulings are highly authoritative, especially regarding Igun resolution.
[3] The Mishnah (Gittin 7:1) discusses a case where a husband is unable to talk, but a Get can be written if when asked if he wishes to write a Get for his wife, the husband nods his head in agreement. It must be confirmed, in addition, that the husband is mentally competent by posing questions to him and he responds in a reasonable manner (i.e. if when asked, “Do you want to build a snowman?” in the middle of summer, he nods his head yes, it shows that he is not mentally competent; see Gittin 70b).
[4] This explanation follows Rav Moshe Feinstein, Teshuvot Igrot Moshe Even HaEzer 4:113.
[5] The Rama, though, cites an opinion that she requires a subsequent Chalitzah in order to remain married.
[6] The fact that the Be’eir Heiteiv cites the Radach demonstrates that this opinion is regarded as a mainstream opinion.
[7] The Radach conditioned his ruling upon the consent of two other major Halachic authorities endorsing his bold ruling.
[8] Rav Frank (1880-1960) served as the Chief Rabbi of Jerusalem and is regarded as one of the leading Halachic authorities of the twentieth century. We should note that this responsum is included in a volume of Teshuvot Har Tzvi that was published decades after the sage’s passing. Rav Hershel Schachter reported to this author that a Teshuvah published posthumously is regarded as less authoritative since it was not edited and prepared by its author for publication as a ruling for all generations (it does tell us, however, how the Gadol ruled in a particular situation and thus does have significant value).
[9] This ruling seems to contradict the aforementioned Mishnah Yevamot 14:1 that if a husband who became a Shoteh cannot give his wife a Get (due to his incapacity). This Mishnah seems to imply that the wife has no Halachic avenue to permit her to remarry in such a tragic situation. Rav Frank could respond that a Shoteh’s limitation applies only to the husband’s inability to order a Get to be written, but that there might actually be an alternative argument, ADa’ata DeHachi Lo Kidshah Atzmah, to permit the wife to remarry.
[10] The Tzefat Beit Din argues (towards the end of the ninety three page Teshuvah) that Yevamot 14:1 applies only to a conventional Shoteh and not to someone in a permanent vegetative state, in which the principle of ADa’ata DeHachi Lo Kidshah Atzmah applies.
[11] This could be due to the fact that the Shulchan Aruch (Yoreh Dei’ah 399:13 and Be’eir Heiteiv 398:2) rules that mourning is only a rabbinic obligation and therefore one may rule leniently regarding a matter of doubt pertaining to rabbinic law (Safeik MiDerabbanan LeKula).