(2014/5775)

Introduction

Recently I was approached by traditional but not fully observant couples who respectively conceived children through in vitro fertilization.  In one case, a non-Jewish woman donated the ovum and the wife gave birth to the child, and in another case, the wife donated the ovum and a non-Jewish woman gave birth to the child.  These situations raise two critically important and highly sensitive Halachic issues—whether the children conceived in this manner require conversion and whether a Beit Din may convert a child if it will be raised by not fully observant parents.

We will, with Hashem’s help, analyze both of these important issues and present an approach to these situations.  We will begin by addressing the issue of converting a child that will be raised by not fully observant parents.

Background

The Gemara (Ketubot 11a) presents the rule that a minor can be converted by a Beit Din even though the child does not consent to the conversion.[1] 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.” Just as a parent acts in the best interest of his child, the Beit Din is obligated to act as a parent toward the child and determine the best interest of the child and act accordingly.  The Gemara explains that the Beit Din is empowered to convert the child since it is conferring a benefit to the child. Halachah recognizes such procedures due to the principle of, “Zachin LeAdam Shelo Befanav,” one may bestow a benefit upon another in the latter’s absence (and even without receiving his explicit consent).  Thus, by converting the child, the Beit Din acts in his best interest.

The Gemara limits Beit Din’s authority to convert someone in this manner to a minor. 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 adulthood, he has the opportunity to renounce his Jewish identity. The Ritva (ad loc.) explains that that if the child does not renounce, he clarifies that in reality a benefit was conferred upon him (and vice versa).  The Gemara concludes, though, that once the child reaches the age of adulthood and does not immediately renounce his conversion, he no longer enjoys the right to do so.[2]

Tosafot’s Question

Tosafot (ad. loc. s.v. Matbilin) pose a very basic question on the entire concept of converting a minor.  Assuming that the principle of Zachin operates based on viewing the one conferring the benefit as the presumptive Sheliach (agent) of the beneficiary,[3] how can Beit Din 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 the exclusion of a minor from Shelichut applies only 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).

Adoption by Non-Observant Parents – The Strict View

A major debate emerged in the nineteenth and twentieth centuries as to whether Halachah authorizes a Beit Din to convert a child that is adopted by a 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. Therefore, the child most likely will emerge as an adult who will routinely violate Jewish law.

Rav Itzeleh Ponivizher (Teshuvot Zeicher Yitzchak 2) rules that conversion of a minor in such circumstances is invalid. He writes, “Since we know that he certainly will violate all of the Torah’s laws when he will be raised in such a home, it is not a benefit.” Teshuvot Chavetzelet HaSharon 1:75) similarly rules that “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 Avraham Yitzchak 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[4] 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 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. The Teshuvot Chavatzelet Hasharon (Y.D. 1:75) presents a compromise between these two approaches, teaching that it is a Zechut Gamur (as per Tosafot’s insight) if Beit Din determines that it is more likely than not that the child will be observant.

Adoption by Non-Observant Parents – the Lenient View

On the other hand, other Poskim believe that it is preferable to be even a non-observant Jew than to be a Nochri. The Teshuvot Beit Yitzchak (Yoreh De’ah 2:100:11; see also Even HaEzer 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) subscribes to this view as well.

We should note, however, that there does not seem to be such a wide gap between the Zeicher Yitzchak on one hand and the 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 Igerot Moshe E.H. 4:26) adopts a compromise approach to this issue. He is inclined to the lenient view since, “[Even] wicked Jews have Kedushat Yisrael, and the Mitzvot they perform are considered Mitzvot and the sins they perform are for them like Shogeig (done as a result of negligence).”[5] Elsewhere, though, Rav Moshe clarifies that in practice this question is unresolved (Dibrot Moshe Shabbat 84 comment 11). Thus, Rav Moshe regards such a child as a questionable Jew, possibly Jewish and possibly non-Jewish. Rav Yona Reiss, former director of the Beit Din of America, reported at the 2007 convention of the RCA that the Israeli Chief Rabbinate adopts this approach as well.

Rav Moshe does allow a conversion in a situation where it is “Matzui” (likely) 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 because in such circumstances it is likely 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 (as well as many others) reports that Rav Yosef Dov Soloveitchik also considered it a Zechut if the non-observant parents commit to providing the child with a Yeshivah education. Rav Yisrael Rozen (Techumin 20:249-250) suggests this compromise as well, but he insists that Jewish education does not suffice if the child will be raised by a non-Jewish parent. We should note that the aforementioned Zeicher Yitzchak also appears 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, seemingly would not accept this compromise, as he requires that it be clear that the child will fulfill all of the 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 Beit Din of America consider the wide variety of opinions that exist among the Poskim and seek to insure that Geirut of a child can be conducted at a standard that can be accepted by all.

While the RCA’s threshold is much higher than Rav Moshe’s, there is no fundamental dispute since the RCA accepts Rav Moshe’s (and the Chavatzelet HaSharon’s) standard of the likelihood that the child will emerge observant.  Rav Moshe believes that providing a Jewish education makes it more likely than not that the child will be observant while the RCA approach believes that only parental role modeling combined with Orthodox Jewish education makes it likely that the child will affirm his Judaism and live a Torah lifestyle as an adult. Experience teaches that the RCA’s standards better conform to the current reality.    

Thus, when a traditional, but not yet fully observant, couple petitions a Beit Din to convert their adopted child, the Beit Din must, acting in its role as the child’s parent, assess whether the Geirut constitutes a Zechut Gamur, that it is more likely than not that a child raised in that home will live an observant lifestyle.

What about if the Beit Din is unsure regarding the likelihood of the child’s continued observance, such as when parents are “traditional” but not fully observant?  In ordinary circumstances, it is appropriate to be strict since Safeik MiDeOraita LeChumra, we must rule strictly regarding matters of Torah law, certainly in regard to something as basic as Jewish identity.  However, what if it is questionable if the conversion is altogether necessary, such as might be the case regarding a situation of IVF that we described?  We will, IYH and BN, address this question next week.

[1]  Even if a child expresses his or her consent, the consent is not meaningful due to the child’s immaturity; see, for example, Mishnah Machshirin 6:1.

 [2] For details on how this is implemented in practice, see the Geirut Policies and Standards (GPS) issued by the Rabbinical Council of America together with its affiliated Beit Din of America (available at the RCA’s website,www.rabbis.org). In short, the RCA document asserts that a formal acceptance of Mitzvot 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 that he was converted and that he has the right to renounce his conversion, his continued observance of Jewish law suffices. For further discussion and alternate opinions, see Encyclopedia Talmudit (6:448-449) and Rav Gedalia Felder’s Nachalat Tzvi (1:25-28).  All agree, however, that the child must be informed he was converted as a baby and has an option to renounce. Nonetheless, informing a child of his right to renounce at Bar/Bat Mitzvah is particularly challenging for a child converted due to the donor or host mother in the IVF process not being Jewish.  Learning of the circumstances of his or her conception can be very difficult for a child of twelve or thirteen to digest. Competent rabbinic and psychological guidance must be sought in such situations. The Beit Din and therapist might suggest waiting until the individual has emerged from his teenage years.

[3] The Ran (Kiddushin 16b in the Rif’s pages) discusses at length how the principle of Zachin relates to Shelichut,  whether it operates through the principle of Shelichut or constitutes a principle separate from Shelichut which follows its own particular set of regulations.  See also Tosafot Nedarim 36b s.v. Mi, Tosafot Gittin 64b s.v. Shani, and Ketzot HaChoshen 105:1.

[4] The list of and discussion of these Mitzvot can be found in Masechet Sanhedrin 56a-59b.

[5] They are simply following in the path in which they were raised; see Rambam Hilchot Mamrim 3:3 and Ramban BeMidbar 15:22.  It is remarkable that Rav Moshe regards one raised by non-observant parents as a Shogeig even if he received many years of Torah education in an Orthodox Day School.  Also see Kovetz Teshuvot 1:103 for Rav Yosef Shalom Eliashiv’s critique of Rav Moshe’s approach.  Rav Eliashiv cites Teshuvot Seridei Eish 2:96 who firmly rejects Beit Din converting a child if the parents are not observant, as precedent.