(2016/5776)

Mamzeirut as an Expression of Human Dignity

Now that we have outlined a framework of how to grapple with clashes between Halachah and conscience, we are ready to discuss the concept of Mamzeirut both in theory and practice. While it certainly seems unjust for a child to suffer[2] for the sin of his parents, this is the manner in which the world functions. If a mother uses drugs while pregnant, the child will suffer his entire life due to no fault of his own. Poor parenting most often has severe and permanent negative consequences. Rav Shmuel Goldin expresses the point eloquently in his Unlocking the Torah Text (Vayikra p. 93-94):

While Judaism absolutely rejects the Christian concept of “original sin,” we cannot deny the reality of “intergenerational reverberation.” We are not responsible, in any way, for the transgression committed by Adam and Chava at the beginning of time. We are, however, affected by that sin’s ramifications. This is not a punishment, but a reality of life. Had Adam and Chava not sinned, we would now be living a very different existence in the Garden of Eden. Similarly, we are all concretely connected to each other across the generations. Such overarching life issues as where we are born, to whom, into what environment – and, in fact, whether or not we are born at all – are determined not only by God, but also by our parents and by those who came before them as well. Even more importantly, our decisions and actions today will critically affect the lives of our children and their progeny tomorrow.

The Torah’s imposition of a severe restriction upon a Mamzeir conveys the profound sanctity of marriage as well as the severity of adultery and incest. While other cultures, LeHavdil, may view adultery as “no big deal,” such a worldview essentially disrespects marriage and family, and it ultimately disrespects the worth of human beings, the products of marriage and family. Cultures that do not respect marriage and family deteriorate and create dysfunctional people and misery. Thus, the laws of Mamzeirut fundamentally express a respect of people, since people most often function properly when they are born and raised within a healthy and functional family.

A casual attitude towards sexual relations, the creation of life and a foundation of a marriage, undermines family, marriage and life itself. Thus, although the divine restrictions imposed on a Mamzeir are heart wrenching, they are indispensable in creating a culture of healthy respect for marriage, family and humanity.

Limiting the Application of Mamzeirut in Chazal

As we discussed in our previous issue, our moral conscience serves as a hermeneutical tool to interpret the Torah. Thus, due to their sensitivity to a Mamzeir’s suffering, rabbinic authorities make every effort to minimize (albeit, not entirely eliminate) Mamzeirut. The following are three ways in which Chazal limited its application[3].

The most powerful reduction of the application of the rules of Mamzeirut is the Gemara’s presumption (Chullin 11b), “Rov Be’ilot Achar HaBa’al,” meaning that most of a married woman's acts of intercourse are with her husband. This presumption emerges from the Gemara’s elemental principle of following the majority (Rov). Thus, even if it is rumored that a married woman has been unfaithful to her husband, her children are not classified as Mamzeirim (Sotah 27a).

The presumption of “Rov Be’ilot Achar HaBa’al” is such a strong presumption that Chazal assert that a fetus could spend up to 12 months in the uterus, which enables Chazal to attribute a child's paternity to its mother's husband. Thus, even if a husband had been away from home for up to 12 months before his wife gave birth, paternity is ascribed to him (Yevamot 80b).

The most powerful expression of Chazal’s efforts to limit the implementation of the Mamzeirut laws is the Mishnah’s teaching that "Eliyahu will not come [in the future] to declare the pure impure, nor to declare the impure pure, nor to distance those who are near or to draw near those who were distanced, but only to distance those drawn near by force and to draw near those distanced by force" (Eiduyot 8:7).

The Bartinura, in his commentary to this Mishnah (ad loc.), explains that Eliyahu HaNavi will distance only those who are publicly known to be Mamzeirim but were forcibly mixed among the Jewish People – "but where there is an individual Mamzeir in a particular family, but this is not publicly known, owing to the family having intermingled [into the Jewish community], Eliyahu will let it remain so and let the family retain its Chezkat Kashrut (presumption of legitimacy)."

This is a basis[4] for Rema's ruling (Even HaEzer 2:5) that if a person learns that one of the ancestors of a particular family is a Mamzeir, he may not reveal this, "but rather he should allow the family’s Chezkat Kashrut to remain intact, for all the families that have become assimilated into Israel are legitimate in the future."

Limiting the Application of Mamzeirut in Modern Times – Rav Moshe Feinstein

Posekim throughout the generations have continued in Chazal’s tradition of limiting the implementation of Mamzeirut[5]. In the twentieth century, Rav Moshe Feinstein and Rav Ovadia Yosef were the exemplars par excellence of this tradition.

Rav Moshe famously ruled that most non-Orthodox and civil marriages were invalid (see, for example, Teshuvot Igrot Moshe, Even HaEzer 1:75, 1:135 and 3:25, and a full review of this topic in Gray Matter 1:63-90). This alleviated the status of Mamzeirut from tens of thousands of individuals, whose mother remarried without receiving a valid Get from her first husband.

Rav Moshe was by no means the only Poseik who adopted this approach. However, Rav Moshe greatly expanded this ruling. For example, he invalidated a marriage ceremony conducted by a non-Orthodox rabbi even if valid witnesses were present in the audience, as long as they did not see the actual delivery of the ring from groom to bride. Moreover, in the context of a ruling regarding Mamzeirut (Teshuvot Igrot Moshe, Even HaEzer 4:13), Rav Moshe rules that even a Conservative rabbi who fully observed Torah is an invalid witness, since he is defined as an Apikores (heretic). Rav Moshe argues that the very fact that the rabbi affiliates with the Conservative movement – which endorses heretical viewpoints – renders him an Apikores and therefore an invalid witness.

Another landmark ruling by Rav Moshe is his ruling (Teshuvot Igrot Moshe, Even HaEzer 1:10) that a child conceived via artificial insemination is not a Mamzeir, even if the sperm donor is not the husband. Rav Moshe rules that Mamzeirut is created and transmitted only through actual relations. This leaves open the possibility of a Mamzeir producing children through artificial means with his wife and avoiding the transmission of his status to the next generation (see Kiddushin 69a and Techumin 28:58-62).

Conclusion

Next week, we will conclude our discussion of Mamzeirut and morality with a presentation of more examples of how great Halachic authorities of the past half century have limited (but not completely eliminated) the practical application of Mamzeirut.

[1] This implies that Hashem will drop the mountain on the people who don’t accept the Torah.

[2] It is important to clarify that a Mamzeir is not outcast from a Torah society. He is restricted only regarding whom he is permitted to marry (Yevamot 22b). The Sefer HaChinuch (number 560) writes:

“But to reside in any Jewish community and be fully involved in all communal matters is entirely permissible [for the Mamzeir] just as any other Jew. Chazal already taught (Horayot 13a) that a Mamzeir who is a Torah scholar is called to the Torah before an ignorant Kohein.”

[3] One may ask why then Chazal expand the categories of Mamzeirut to include the Shetuki and Asufi (when the identity of the child’s father is unknown). An answer is that Chazal are given the mandate to fully develop the Torah, just as humanity has to develop the world (BeReishit 1:28 and 2:3 – “Asher Bara Elokim La’asot”). Hashem made the world incomplete, and we are commanded to complete it (as expressed by Rabi Akiva, Midrash Tanchuma Parashat Tazria; Hashem provides wheat and man’s task is to elevate the wheat to bread). Similarly, Hashem left room for us to complete the Torah, as explained by Ramban regarding the need for Chazal’s restrictions regarding Shabbat (commentary to VaYikra 23:24). Thus, since Hashem includes the category of Mamzeir in the Torah, Chazal are mandated to fully develop this category. Nonetheless, in practice, Chazal seek to limit the practical implementation of this rule.

[4] Kiddushin 71a is also a source for this important ruling.

[5] Pitchei Teshuvah and Otzar HaPosekim to Even HaEzer chapter 4 summarize the classic responsa literature that deal with Mamzeirut.