Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat VaYishlach

16 Kislev 5769

December 13, 2008

Vol.18 No.12

The Ger Katan Controversy - Part 1 of 1

by Rabbi Chaim Jachter

Introduction

This week we shall continue our discussion of the current Geirut (conversion) controversies and outline the intense debate concerning converting non-Jewish children whose adoptive parents do not observe Jewish Law. There has been much discussion about this issue in the Jewish media recently and we shall seek as to shed more light and less heat on this emotionally charged issue. This question has emerged as particularly relevant in an age when Jewish children are rarely available for adoption and almost all adoptions involve non-Jewish children.

Gemara Background

The Gemara (Ketubot 11a) presents the rule that a minor child can be converted by a Beit Din. Rashi (ad. loc. s.v. Al Da’at) explains that “the Beit Din becomes like a father to the child and the child converts by means of them.” One may ask on what basis can a Beit Din convert a child if the child does not consent to the conversion (even if the child expresses his or her consent, the consent is not meaningful due to the child’s immaturity; see, for example, Mishnah Machshirin 6:1). The Gemara explains that the Beit Din is empowered to convert the child since it is conferring a benefit to the child. In such circumstances consent is not required. This is an expression of the Halachic principle “Zachin LeAdam SheLo BeFanav,” one may bestow a benefit to another even not in the latter’s presence (and even without receiving their explicit consent).

The Gemara limits Beit Din’s authority to convert someone in this manner, to a child. An adult cannot be converted against his will as it is not considered a benefit (Zechut) to him. The Gemara explains that it is a hardship for an adult to convert and become accustomed to a life of Torah observance since he has been accustomed to non-observance. A child is not disadvantaged in this regard and thus conferring Jewish status upon him is considered a benefit.

The Gemara notes that when the child reaches the age of Bar or Bat Mitzvah they have the opportunity to renounce their Jewish identity. The Gemara concludes, though, that once the child has reached the age of majority and has not renounced his conversion as a minor, he no longer enjoys the right to undo his status as a Jew. For details on how this is implemented in practice, see the Geirut Policies and Standards (GPS) recently issued by the Rabbinical Council of America together with its affiliated Beth Din of America (available at the RCA’s website, www.rabbis.org).

In short, the RCA document asserts that a formal acceptance of Miztvot before a Beit Din is not required when the child reaches Bar/Bat Mitzvah age “in accordance with time honored practice.” Rather as long as the child knows he was converted and that he has the right to renounce, his continued observance of Jewish law suffices. For further discussion and alternate classic opinions see the Encyclopedia Talmudit (6:448-449) and Rav Gedalia Felder’s Nachalt Tzvi (1:25-28).

Tosafot’s Question

Tosafot (ad. loc. s.v. Matbilin) pose a very basic question based on their assumption (disputed by the Ketzot HaChoshen 243:8) that the principle of Zachin operates based on viewing the one conferring the benefit as the presumptive Sheliach (agent) of the beneficiary. Tosafot accordingly ask how Beit Din can confer a Zechut on a child if the institution of Shelichut (agency) does not apply to a minor (Bava Metzia 71b).

Tosafot’s final answer (also see Tosafot Sanhedrin 68b s.v. Katan for further discussion) is that Shelichut does not apply to a minor regarding a matter where it is somewhat questionable as to whether one is truly conferring a benefit. However, bestowing Jewish identity is a pure and unadulterated benefit, Zechut Gamur (in the words of Tosafot). Indeed, attaining Kedushat Yisrael (the status as one endowed with the holy standing of a Jew) is the ultimate human achievement and the highest level a human being can accomplish.

Adoption by Non-Observant Parents – The Strict View

A major debate emerged in the nineteenth and twentieth centuries whether the Halachah authorizes a Beit Din to convert a child that is adopted by non-observant couple. The question is whether Beit Din is considered to be conferring a benefit to a child in such a situation since the child will be raised in an environment where Jewish law is not honored and will therefore most likely emerge as an adult who will routinely violate Jewish law.

Rav Itzeleh Ponivitzher (Teshuvot Zeicher Yitzchak number 2) rules that conversion of a minor in such circumstances is invalid since the Beit Din is harming the child and not acting in his interests. He writes “since we know that he will certainly violate all the Torah’s laws when he will be raised in such a home, it is not a benefit.” Teshuvot Chavatzelet Hasharon (Y.D. 1:75) similarly rules “since it is clear that he will violate all of the Torah based on the way his adoptive parents will raise him, it is not a benefit.” Rav Kook (Teshuvot Da’at Kohen 147) adopts the strictest stand and argues that Beit Din is considered to be conferring a benefit “only if we know that the child will observe the Torah as an adult.”

Indeed, a non-Jew who observes the seven Noahide Mitzvot (the seven basic laws of human decency such as not murdering or committing adultery) is rewarded with a share in the world to come but if a non-Jew converts and fails to observe the Torah, Hashem will hold him accountable for his failing to observe the 613 Mitzvot (Rambam Hilchot Issurei Biah 14:2 and Rambam Hilchot Melachim 8:11).

We should note that there seems to be a significant difference between Rav Kook’s approach and that of the Zeicher Yitzchak and Chavatzelet HaSharon. The latter seem to disqualify a conversion only if it seems clear that the child will most likely violate all of the Torah’s laws whereas Rav Kook requires that it be clear that the child will most likely observe Torah law.

Adoption by Non-Observant Parents – the Lenient View

On the other hand, other authorities believe it is preferable to be even a non-observant Jew than a Nochri. Teshuvot Beit Yitzchak (Y.D. 2:100:11 and also see Even HaEzer number 69) writes “nonetheless it is preferable to join the Jewish people even though he will be punished [for violating Torah law], since all Jews have a share in the world to come and it is a great Zechut for him even though he will violate a few Torah laws.” Rav Chaim Ozer Grodzinsky (Teshuvot Achiezer 3:28), considered the leading Torah authority among Eastern European Jews in the first half of the twentieth century, subscribes to this view as well.

We should note, however, that there does not seem to be such a wide gap between Teshuvot Zeicher Yitzchak and the Chavatzelet HaSharon on one hand and Teshuvot Beit Yitzchak on the other, as the former disqualify a conversion in a case where it is clear that the child will violate all of the Torah’s rules and Teshuvot Beit Yitzchak seems to be lenient only when it appears that the child will violate a few of the Torah’s laws.

Rav Moshe Feinstein – A Compromise View

Rav Moshe Feinstein (Teshuvot Igrot Moshe E. H. 4:26 and Dibrot Moshe Shabbat 84 comment 11) adopts a compromise approach to this issue. He is inclined to the lenient view since “even wicked Jews have Kedushat Yisrael and the Mitzvot he performs he will receive reward even if he did not intend to act for the sake of a Mitzvah and the sins they perform are for them like Shogeg” (done as a result of negligence and not deliberate, since they are simply following in the path in which they were raised, see Rambam Hilchot Mamrim 3:3 and Ramban BeMidbar 15:22; see, however, Kovetz Teshuvot 1:103 for Rav Yosef Shalom Eliashiv’s critique of Rav Moshe’s point). However, he concludes that in practice this question is unresolved. Thus, Rav Moshe would appear to regard a child whose adoptive parents were non-observant and was converted by a Beit Din, to be a Safeik Jew, possibly Jewish and possibly non-Jewish. Rav Yonah Reiss, former director of the Beth Din of America, reported at the 2007 convention of the RCA that the Israeli Chief Rabbinate adopts this approach as well in practice.

Rav Moshe, though, does allow a conversion in a situation where it is “Matzui” (possible) that the child will emerge as an observant adult. He specifically permits converting a child if the child will receive a Torah education from fully observant teachers even if the adoptive parents are non-observant. He reasons that since in such circumstances it is possible that the child will grow up to be a Torah observant adult “it is certainly a Zechut” to be brought into such a situation.

Rav Yosef Adler and Rav Haskel Lookstein (as well as many others) report that Rav Yosef Dov Soloveitchik also considered it a Zechut if the non-observant parents commit to providing the child with a Yeshiva education. Rav Yisrael Rozen (Techumin 20:249-250) suggests this compromise as well, but insists that Jewish education does not suffice when the child will be raised by a non-Jewish parent. We should note that the aforementioned Zeicher Yitzchak and Chavatzelet Hasharon would also appear to accept this approach since in such circumstances it is not clear that the child will grow up to violate all of the Torah. Rav Kook, however, would not appear to accept this compromise as he requires that it be clear that the child will fulfill Mitzvot when he reaches adulthood.

Conclusion

In 2007 the RCA in conjunction with the Israeli Chief Rabbinate established a set of guidelines for converting a child, set forth in the aforementioned GPS document. The standard is that the child must be raised in circumstances where it is “likely” that he will observe Mitzvot when he reaches adulthood. The requirements include that the child receive twelve years of Orthodox Jewish education, that the adoptive parents fully observe Kashrut, have a positive attitude to full observance of Mitzvot and that, at minimum, there be “significant observance of Shabbat.” The RCA and Beth Din of America consider the wide variety of opinions that exist among the Poskim, as we have outlined, and seek to insure that Geirut of a child can be conducted at a standard that can be accepted by all.