RAMBI - Full View F01l11at Page 1 of 1

RAMSI - Index of Articles on JewishStudies

Quit

Basic Search Advanced Search Recent Search Previous Searches Basket

Record View

Full Record View Short Record View

"'{P Record 28 of 29

Prints; SavelEmail. -./'

AuthorTitleInNoteSubjectSource (journal]

ULS LinkRecord Number

,Cohe.D.....Jack Simchaconversion of children born to gentile mothers and Jewish fathers

Tradition 22,4 (1987) 1-17Reprinted in "The Conversion Crisis" (1990),-conxerstcn•. conxens..Halakhah,Ir.§dition:..£.Jour.n§lQf Orthodox Jewish Thought. New York,IhELConve.rsion Crisis: Essays from the Pages of "Tradition", Ed. by- EmanlJm£.elqman anI

NJ: Ktav: New York: R§.bbinLcal Council of America. 1]90..Ql§.P.J2Y ULS record for this journal000006658

About RAMBI JNUL Feedback

http://alephlJibnet.ac.iI/FINOHVR?nFOYT ()1 TV,PDTD'7Vr\,,\,....r<-n C'lTC"I n r-r-c r-o-

-.:':!"","..........,...,.......-.,.e:

....c: ;....:::; 1)

u 'l)s::: ... ....

(5=::...c

-:.r. -

Z:r.:r.

or,....=-.,.Ior,...:.

I

.=-...t;;; :::'- ...,

:: .:,;r. =-=..-::.. -"-;;

-.= :;-i2::'".ct..::::

"

;;=: :.I,

:..., J:

.= :-::

....;-

--,'/:

,r,'F,

g- : ..i: c',...::!......:

;..v :.::"..J

::;-"5

.... - i.... - == "";.::. ;

- .= - :-::; - -

nau!.j : :--3-;;

:; -;, ·oJ == -;:

-...:

-'-

.-

e,-- :.iJ ;!J

':

-::'.

:: ::

A simple reading of the text is that a heir dill mav convert aninfant gentile. The rationale is that being Jewish is considered aprivilege. II zekltut, and one may confer an advantage upon a personeven without his knowledge, This principle is recorded in theShu/hall Arukh ( Yoreh De'alt 2Mi:7) as the authoritutive halakhah.

Yet srruightforwurd as the Talmudic text appears. this basichulukhic principle was not accepted universally at face value.. In I;)64. Rabbi Bernard lllowy of New Orleans. a former student

or the Hutam Soter. ruled that sons born 10 Jewish Iuthers andgentile mothers could not be circumcised by a niohel. His rationalewas that since such sons were not Jewish •. the circumcision mightcause people to mistakenly identify them as Jews, To solicit supportfor his halukhic position; R.lllow), presented his case publicly in Del'lsraclit (an Orthodox Journal published in Germany). requesting theEuropean Rabbinate to respond. or mujor pertinence to us is thepublic exchange of views between Rabbi Zvi Hirsch Kalischer(1795-1894) and Rabbi Ezricl Hildcshcirncr (IX20-IX99). R.Kalischer permitted such a circumcision as well ax the conversion ofchildren born to gentile mothers. while R. Hildcshcimcr disputed hisruling and prohibited such conversions.'

R. Kulischcr made the following comments regarding the Tal-mudic discussion in Ketubtn: Rushi .conicndcd that R. Huna'sdictum that the heir dill may convert a minor relates to a case wherethe mother alone brought the child to heir dill for conversion. TheTalmudic icxi further contends that when the parcrus convert. together with the child. R. Hunu's 'dictum is not applicable. Thisseems to suggest that in the original instuncc the mother did nOIherself convert when she brought her child 10 licit din for aconversion. Even though the child would be reared subsequently byagentile mother. R. Huna permitted the heir dill to conduct theconversion. As such. concludes R. Kalischcrv jf a heir dill mayconvert one who will be reared by a gentile mother. considering. it aprivilege tzckliui) for the child. so much more so when the child's'ather (a Jew) brings his son Ior conversion: the child wishes toemulate his father and we have good reason to expect the child togrow lip Jcwishly,

R. Hildcshcirncr retorted that we have no way of being certainthat the gentile mother posited by Rashi intended to raise the childherself: perhaps either the child would he reared by observant Jewsor it is known definitely that the gentile mother would rear the childaccording to the dictates or Torah and not avotlah zurah. In themodern case or a gentile mother and Jewish father bringing theirchild to be converted, however, we cannot automatically apply

'luna's principle.

In 1949. when Rabbi Yechicl Yaakov Weinberg (the last RoshYeshiva or the llildcshcimer Berlin Rubbinicut Seminary) was askedhis opinion in a case wherein a Jewish father and gentile motherbrought their child to heir dill for conversion. he did not focus on theargument as outlined here. out instead quoted the basic guidelinewhich to this day serves as the pivotal negation of most childconversions:- The Talmud in Ketubot rules that a heir din has theauthority to convert a child: this is because being a Jew is a privilegeizekhut) and one may confer a zekliut without another's knowledge.But to have a Jewish child grow up in a home that transgresses basicJewish bclicl's and observances is not deemed a zckhut. he said; it israther a disudvnntugc and liability. Accordingly. a heir dill has noauthority to implement such a conversion. This guideline basicallyinvalidates the legitimacy or the conversion of any child raised in anon-observant milicu.j Indeed. this principle has a far-reaching effectin another social issue: adoption . Jewish families seeking to adoptchildren arc faced with a number of obstacles. Should they attemptto adopt a Jewish child. rabbinic authorities require exact data aboutthe purcnts of the child to mitigate concerns about illegitimacy;'frequently. the exact information is difficult to acquire. Accordingly.many people prefer to adopt a gentile child and convert the childduring infancy. Yet. if the adopted parents or such a child arc notthemselves observant. a beit dill mav not convert the child.:')

Though the argument mundutiug an observant lumiliul milicu inorder to validate a conversion may appear straightforward andlogical. with all due respect and reverence. it seems that a Iinc readingof our text in Ketubo: docs not force such a conclusion. Consider thefollowing qucst ions:

l. Rushi notes that R. Hunus ruling relates to a situutiun inwhich the mother brought her child to a beit dill for conversion.suggesting thai had the father been present the legal process orconversion might have differed. But. what is the pragmatic hulakhicdistinction between a mother anJ a father in this mailer'?

2. R. Huna states "(,'('1' kutan nuttbilin oro a/ da'a! heir din->through!the knowledge or heir dill." The phrase "0/ du ut beit din"connotes a special role Ior the court in the conversion of i:I childseparate and distinct from its function during the conversion of anadult. What is this ndditiuna l role'!

3. Rashi states that "beit din becomes a surrogate luther duringthe conversion of a child." Why is such a status necessary and whatpurpose docs iI scI've'!

4. The Talmud states that R. Hunas dictum may not be derivedfrom the Mishna. as the Mishna refers to a case wherein the parentsconverted with the child. In that situation. the child is assumed to

J

III

Ii

II

I!II

I VI I JUlY; /i ,ICJUI1/£// IU VIII/U(/U.\ II/""."'lf

. al-. eve of the actions of his parents. Yet, the pragmatic distinctibetween the two cases is unclear. The implication is that R, Hunascase is an innovative role for beit dill. What is that role'!

5. A valid haluk hic conversion requires four integral elements:Kubbalat Mitsvot (the awareness of and commitment to observe thecornmandments '): Milah (circumcision for a male convert); Tevilah(immersion in a niikveh); and Belt Dill (the presence or a RabbinicalCourt). Should anyone of these factors not be present, the conver-sion is not proper. A child certainly cannot (and does not) compre-hend the meaning or mitsvot or the need for their observance: norcan he or she: possess the ability to make a commitment to observemitsvot in the future. As such, the entire conversion should bedeemed invalid for it lacks the essential element or kabboku mitsvot.

To. resolve these difficulties it is necessary to posit a new frameof reference which sets guidelines for the discussion.

Shira Mek ubbetset on our text poses the latter question regard-ing the lack of kubbolat tnitsvot at the conversion of a child. HecitesRitvu and Shita Yesliana who contend that kuhliaku mitsvot is a vitalelement of the conversion process only in those cases where suchcommitment is physically possible to ascertain. In cases where thepotential convert has the physical and intellectual capacity 10 be .awurc of niitsvot and make a commitment to observance, then andonly then is this essential for a legal conversion. In such instances. thelack of kabbalat lIIiIS\'OI would invalidate the conversion. For aninfant or child, however, where kablialat tuitsvot is beyond the child'sphysical capability or comprehension, this clement is deemed non-essential to the conversion process. In other words, any considerationor mitsvot is not germane to the validity of such a conversion.Consequently, R. Huna's rule and the Talmudic discussion do notmake any reference to observance. Indeed, to infuse the concept ork ablialat tuitsvot into our text is contrary to Ritvns position and amisreading of the discussion. The issue, it seems, concerns a com-pletely different concept.11 We suggest that the Talmud is concerned with the issue ofconsent and not observance. A beit dill is not permitted to coerceanyone, adult or child, to involuntarily accept conversion. Theprocess must be a voluntary one, accepted willingly by the potentialconvert. Should the co nvc rxiou he coerced, then it is deemed invalid,"

The Talmud contends that R. Hunas principle is not applicable10 a case in which parents convert together with their child. For insuch a case, "the child consents to [join] the action or his purcnts.r lnother words, an act which emulates the action of parents-the rolemodds-is deemed implied consent to the conversion process. The.conversion has legal standing even should one dispute R. Huna's4

-

principle, that bcit dill may convert a minor, R. Hunr 'Ise isdifferent; he deals with a situation in which parents arc not ,,\lnvcrt-ing together with their child. In such a case, the problem or consentlooms as a major issue. What authority docs licit dill have to convertachild without any concern as to whether there is consent to such aprocess'! To this R. Hunu innovates the concept that the conversionprocess is conferred "ul cia 'at belt dill." It is not the authority orpower of beit din which is invoked, but rather du {tI-knowledge.consent. That is, beit din affirms consent for the child, Ior beinu aJew is a privilege, and one may confer a privilege upon another evenwithout his or her knowledge. With beit din thus affirming consentfor the child. the conversion is thereby presumed to he a voluntaryprocess. This is the meaning behind Rashi s comment that the beitdill becomes a surrogate father for the child; it becomes a surrogateparent for purposes or consent. Of interest is that this commentary ofRashi is cited by the Belt YO,H:!'[ Yoreh De'ali 26X] who notes that thebeit dill "becomes the father of the child who is converted throughtheir hands." In other words. the court has a unique role to play inthe couvcrsiou of a child distinct from that performed at theconversion of an adult. In the former case, they guarantee consent tolegitimize the conversion.

Of concern arc the particulars of the case in which R. Hunapresents his principle. It is clear that R. Hunu is not dealing with asituation where parents converted with the child. The TO,H:!()r Rid[l\efuhol l la] suggests that R. Huna dcals with a case or either anorphaned. destitute gentile youth or a child who was captured: theShira Mekubbctset presents other options. Yet Rushi maintains thatR. Huna is dealing with a case or a mother who brings the child toneil dill. Indeed, it is Rushi's view that must be seriously consideredabove and beyond that of other authorities, 1'01' it is Rushis positionwhich is officially recorded in the Codes (sec Yorch De 'air 26X:7).

The implication or Ruxhis interpretation is that had tile fatherbrought the child to the heit din, R. Huna \ principle would not beoperational. Indeed, Ole Bah specifically notes that when the fatherbrings the child for convcrsiou. da'at beit dill is not ncccssarv.?

Rashi apparently is of the opinion that no propel' conversion canoccur without the prccondirion of consent. Just as a child whoconverts with his parents consents to performing a similar act. alather has the authority to grant consent to a licit din Ior theconversion or his child. The determination or the religion or the childis the father's prerogative. Consequently. when the: luther grantsconsent to convert his son. the bcit dis. is not needed to utilize itsgood offices for consent.

5

IiII

iI\I

\II

TRA DITJON: A Journal01' Orthodox. .There arc two options for interpreting Rashi's position on the

role of the mother: .I. Rashi believes that [uri! dill has· no authority to convert

orphan children. Belt din cannot presume that the concept of zekhutis sufficient to imply consent. Consequently. only the wishes of amother together with the concept of zekliut ean enact a legitimateconversion.

2. Rashi feels that only a father and not a mother has theauthority to grant consent; a mother's views arc immaterial (seeglosses of R. Yaukov Emden).

Regardless of which interpretation we accept, the specific lan-guage of the Shu/hall Arukh supports our general position: If agentile child has a father, the father may 'convert him; and if he docsnot have a father and (himself) seeks to be converted or his motherbrings him to be converted. then belt dill converts him. "for it is[deemed] an advantage to him (the child) and one may confer anadvantage even without the beneficiary's presence" [Yorch De'ah268:7]. In the opening section. "the father may convert him." In thelatter section (where the father is not present), "bcit dill converts himfor it is a zekhut." The concept of zekhut is applicable only in theabsence of a luther bringing the child for conversion.

. The text of the Shu/hall Arukli forces us to understand that theentire aspect of zekhut is a material issue only when belt dill mustutilize the principle of da £1/ heft dill. In such an instance, the consentof beit dill is granted only when there is u n assurance of observanceof tnitsvot, Otherwise, beit din does not authorize consent for theconversion. In an instance of a parent bringing his child to heit din,da 'at beit dill is not necessary for the conversion. Parental consent is'sufficient and it may even be deemed a complete zekliut without anyconsideration of kabbulat mltsvot, Fathers have personal rights oyertheir children. and children consider it important to emulate their

Observance of ntltsvot in no way affects this principle. TheShu/han Arukli clearly notes a distinction between the cases andrules that the concepts of zakhiu and du 'at belt dill arc not applicablewhen a father brings his son for conversion.

The above analysis a rgucs against R. Weinberg's halakhic chal-lenge to the legitimacy of the conversion of children born to anirreligious Jewish father and a gentile mother. for in such an instance.the concept of zekhut is not germane. Indeed, since the conversionvalid without the principle of zukhln or da'at beit dill. any question asto. whether it is in fact a zekliut or a liability is immaterial tothec -rsion process.

I'his suggests that the debate between R. Kulischer and...iml·l· mav have been more subtle than we thought..

.1 J. Slnichu Cohen

. IR. Hildeshcimcr contended that R. Huna dealt with a case

where either the mother gave the child to beit din to rear according toTorah values or it was certain that the gentile mother would insurethat the ch ild observed lI1i/Sl'O!. In other words. sinee accord ing toRashi and the Shu/hall Arukh approval of the mother is notsufficient to provide consent for a conversion, and bei: dill musttherefore usc the principle of zckhut, then the mother's commitmentfor the child's observance is necessary for bcit dill to assume that theprocess is indeed a zekhut and not a liability. But if the father bringsthe child to heir dill, no commitment for observance is necessary.Parents cannot assume the commitment of kabbulat tuitsvot for theirchildren. The only reason pureruul consent may be necessary is toinsure that the conversion was not coerced. To assume that theTalmud discusses a case where bcit dill assumes total responsibilityfor the child is simply fur-fetched. Or, one may conjecture that since agentile mother's commitment for observance is meaningless. h'eit dillwould not provide consent a/ cia 'at belt dill unless it also assumedresponsibility to rear the child. Again. such extra precautions wouldonlyapply when the conversion was al da'at beit dill.

R. Kulischcr contended that if the beit dill could convert a childand return that child to the gentile mother's home. it certainly shouldpermit a child of a gentile mother LO be reared by a Jewish father.When a gentile mother alone brings her child to a beit dill. theprinciple of zakhin is applicable. Belt din must then manifest concernthat religious observance transpires so that no future disadvantageresults, But when the father brings the child to heit dill. the principleof zakliin is immaterial and. therefore. concern for observance istotally extraneous to the issue.

Now, what. difference is there whether a gentile Father or aJewish father presents his child to beit din for conversion'! To theextent that "consent" of a parent is all that is necessary in such case.there should be no difference in law. The originul proposal to haveJewish fathers present their non-Jewish children to heir din forconversion appears to be based upon solid hulakhic grounds. Since,moreover. k abbulat niitsvot is not necessary in this instance. theprocedure would he readily acceptable to even the most non-observant Jew.

One possible criticism must be noted. According to Halakhuh,gentiles follow patrilineal descent while .lcws observe matrilinealdescent. This means that from a halakhic view. the Jewish father of achild born to a non-Jewish woman is not the halukhic father of theson. The Jc ....vish father may not have the right to ex pres »nseru "for a child that is not his hu lukhic son.

,II'\I

I!

This criticism suggests that a gentile father but not aher may grunt consent. But consent is simply a gilui da'ai, an.pression of approval which must be elicited from the father of a

child. Indeed, a child knows that a certain person is his father. To the .child, there is no difference between a halakhic father or a biologicalfather. The concern is basically who has responsibility to makedecisions for the child. If the child is sick. for example, a parent hasthe authority to sign "consent" for an operation. In ancient times.perhaps only the father could exercise comparable authority. In oursociety, the biological father has legal jurisdiction over a child; hemay make a decision for the child relating to life and death. He.therefore, should have the authority to assume consent on actions forpurposes of conversion for his child. Indeed. many aharonim haveaccepted this line of reasoning.

Rabbi Moshe Schik also discussed the propriety of converting achild born to a Jewish father and a gentile mother. He citedYom Tov [Mishna Ketubot, 4:3, and Kiddushin 3: 13] who rules thatbelt din should not convert gentile children. R. Schik suggested thatTosefot YOIll Tov relates to a case of a Jewish father and gentilemother; since the male is not the halakhic parent of the child he hasno authority to submit such a child to beit din for conversion.R. Schik disagreed with this position. He suggested. rather. that acourt. lekltat hila (ab initio), has no authority to convert gentilechildren, for the conversion process is a form of robbery from agentile. To the extent that gentile children inherit their fathers. theconversion takes the child away from the family. As such, he reasons,the conversion is prohibited without parental permission. Yet. whereparents consent. one may definitely convert the child." At no timedoes he discuss any need for observance .of niitsvot,

Rabbi David Hoffman briefly cited this responsurn and addedthe comment that "since according to the law of the government thisfather has authority over his son, even though he is not a sonaccording to Din Torah. it is not a form of theft. As such, perhapseven lekliat 'hila one may convert the child. but certainly bedi'avad itis valid .'--Rabbi Avraham Yitsha k HaKohen Kook also discussed this

issuc.!'' He too maintained that even though a Jewish father is not thehalakhic father of a son born to a gentile mother, he still has theauthority to submit the child to belt dill for conversion. He utilizedKet ubot Iia as substantiation for this principle. There the Talmudimplies. according to Rashi, that when parents convert with theirchildren. such children consent to the process. The Talmud makesnodistinction as to whether the father converted prior to the conversion

8

v , ,:)/IIICII(/ i.onen

of the child ren or whether the father a nd child ren simultaneouslyconverted. If the former is correct. then once the father converted heis no longer a gentile. but a Jew. and is no longer the halakhic fatherofhis son. However, he still has authority over his children to submitthem to beit din for conversion. This proves, contends R. Kook. thateven a Jewish father has authority over his non-halakhic son.R. Kook notes that such authority may not depend on biology butmay relate to anyone who is responsible for the rearing of a child.

{In terms of pesak, however. R. Kook required that the gentilemother should not protest the conversion. In addition. he refused tosanction such a conversion where kabbalat milSI'OI is lacking.Though he suggested that Tosaf'ot , Sanhedrin 6Sb. imply thatkubbalat mil.I'I'OI is not required for the conversion of a child, he stillfelt that it is wrong to convert a child in a milieu where there is noprobable opportunity for kabbalat lIIilSI'Of. Of interest is thatR. Kook does not discuss the text of the Shulhan Arukh (Yorel:De'ah 268:7) which grants the father authority to submit his child tobeit din for conversion without utilizing the principle of zekhut orany consideration or observance. As the Shulhan Aruklt is thestandard code. its conclusions should be granted halakhic priorityover those of other scholars.)

It.is clear that the requirement of "consent" is simply a means ofpreventing an involuntary conversion. It has nothing to do with acommitment to observe mitsvot. For this reason R. Yosef rules in

'J our Talmudic text that upon maturity. such children convertedduring youth or infancy have an opportunity to renounce theconversion. Since such forms of conversion lack k abbalat mitsvot,the children arc yet granted an opportunity to engage in this essentialfactor. This means that kabbalat mitsvot becomes necessary onlywhen children have the capacity for such a commitment. Prior tomaturity. a renunciation is not halakhically acceptable and upon theage of maturity the child is assumed to be automatically Jewish.When does the child have the opportunity to manifest either rejectionor acceptance of his religious status'!

Three options to express renunciation are presented by ShitaMekubbetset to our text in Ketubot,

I. Tosafot contend that upon the age of maturity the child isinformed about the need to observe IIlit.I'I'Ol. Should the child rejectcommitment. then he loses his Jcwishness,

2. Rit va contends that R. Yoscf speaks of a youngster who as aminor renounced his Jewishness. protesting his or her status as a Jew.Should this rejection persist until after tlH, age of maturity. the child'sconversion is invalidated.

l)

II

I'I'iiII

I

3. Rosh notes that the child is observed at age of maturity,Should he observe Jewish customs, then he is deemed Jewish, Shouldhe not be observant, his status is invalidated."

Kabbalat lI1il.l'VOI may not be essential or even germane to theconversion of a child, but it is vital to the ultimate status of such aconvert. Belt din is not absolved from its ob ligut ionsupon the formalconclusion of the rituals performed in youth. It must convene at thechild's age of maturity to assess the status of the convert. For thisreason Tosafot note rhat the child must be informed of the need td'observe mitsvot, That is. belt dill must convene and formally requestkabbalat mitsvot, This procedure is a formal "act of beit din....

It is apparent that Ritva does not require a formal act of belt dillto extract a commitment of kobbalat tnitsvot, According to Ritva,the child retains his Jewishness as long as he docs 110t reject it as ayouth and persist in his rejection till maturity. This suggests that theconcern has nothing to do with kahhalat mitsvot, Ritva docs notrequire any assessment of observance. This may he due to his theorythat once kabbalat mitsvot is not feasible (c.g .• at the conversion ofan infant), the entire concern for kabbalat mitsvot is never materialto that particular conversion. The concern is, rather. one of "con- .sent." For this reason as long as the child docs not reject his Jewishstatus, the "consent" factor' is implied and the child retains hisJewish ness till maturity. .

The position of Rosh is that kabhalat tnitsvot is immaterial tothe conversion of a child only because the child is unable to makesuch a commitment. This merely temporarily withholds such arequirement till a date when the commitment is physically and legallyable to be assessed. Yet. no formal convening of beit dill or kabbalatmitsvot is necessary. As long as the child is observed to follow Jewishcustoms, it is deemed sufficient to legitimize the conversion.

Hatarn Sofercites numerous opinions, including that of Bahag,who contend that if parents bring their child. to beit dill forconversion. even though the parents themselves do not convert. thechild may not subsequently renounce the conversion. for the parents

the condition of the conversion for him. "11 The subsequentneed of kabbalat mitsvot is nonessential. Once consent is providedfor the conversion, it remains valid even without a subsequent'k abbatat mitsvat,

In 1934, Rabbi Hayyim Ozer Grodzinski modified the abovepesak of Hatam Sofer by contending that only children who arereared as observant Jews may not subsequently renounce their 'Jewish status. However, if during minority they violated Jewish law.then they retain the option of renunciation. But violation of Hala-khah alone is not tantamount to renunciation: a formal renunciation10

is required. Though he felt that a beit dill should preferably' not beinvolved in such cases. he explicitly suggested that the rabbis shouldnot publicly "storm" against such conversions and denigrate them,for according to Halakhah the conversions arc valid.!'

Whatever the final rule on the renunciation process. it is aproblem to be resolved within the halakhie community as to the mostdesirable or practical. pragmatic procedure. This concern in no wayinvalidates or questions the principle that a Jewish father may legallyconvert his offspring from a gentile mother. Logic. moreover. couldextend this concept to permit a non-observant Jewish father tohalakhically convert an adopted gentile child. Since the concern isnot for the observance of mitsvot, but rather for consent. even a non-biological father who is a surrogate luther as a result of state law andresponsible for the rearing of the child should have the halukhicauthority to gra nt "consent" to a conversion.

Coupled with the above analysis there is another principle thatsharply mitigates the charge that to he reared in a nou-obscrva nthome is a liability and not a zekhut,

Rabbi David Hulcvi Horowitz. a distinguished scion of aRabbinic family and Rav of Stanislav (1862-1935). was posed. in1930, the exact question discussed herein by his son. Rabbi MoshcHalevi Horowitz of Vienna. The case involved a man who hadmarried a gentile woman through the civil courts and subsequentlyhad a son. A scholar forbade the couple to circumcise or convert thechild. The rationale was that it is not a zekhut or advantage but a

" distinct disadvantage for a child to he reared in a non-observanthome. Accordingly, any conversion would be invalid. R. Horowitzdisagreed. maintaining that belt dill had a mitsvah, an obligation, toperform the conversion, The contention that probable future non-observance disqualifies the zekhut of the present and thereforeinvalidates the process was discounted for the following reasons:

I. Since the Shulhan Arukh and early commentaries did notmention such a concern. we should not presume to be wiser (or morecautious) tha n they.

2. The Talmud states (Rosh Hashana 16h) that a person isi judged according to i1is deeds at the moment. (Rashi notes that this isapplicable to a person who will eventually do cvil.) Substantiation isthe-verse that "God has heard the voice or the lad there where he is"iba-asher 1111 sham; Genesis 21: 17 and Rushj 's commentary). Thus.even though Ishmael was subsequently to pillageand murder, he was

" still saved. for God judges each person at the moment of prayer'·1 without a view towards what will be in the future. This principleteaches us that a future disadvantage or liability docs not il jate

II

,I: I,I

I!

-r>

present. Indeed, to discount the present due to the Iutur! lation of this concept.

3. Every man may yet do teshuvah,4. The zekhut of circumcision cannot be denied because of

future transgressions, The Talmud notes that circumcision is great inthat it is blessed with thirteen covenants [Nedari/11 Jib]. This zekhutis not to be discounted."

Thus the concern that non-observance invalidates the zekhut ofbeing a Jew is negated as an innovative apprehension not supportedby Halakhah.

Support for the position that q ua lms over a child's futureobservance of mitsvot do not invalidate the halakhic status of aconversion may be derived from Tosafot, Ketubot Ila. Tosafotdiscuss the propriety of utilizing the concept of "zakhin le-adam she-10 be-fanav (acting for a person in his absence to his advantage)" tovalidate the conversion of a gentile child. They suggest that theprinciple of zakhin is deemed rabbinic in nature only in cases whereaprobable liability may occur. One may, therefore, not utilize zakhinto set aside terumah on behalf of another person, for any allocationabove 'the bare minimum may be more or less in amount than theother wished to allocate. and the action may therefore entail apotential liability. In the case ofa conversion, however, which is acomplete advantage tzekhiu gamur) the concept of zakhin may beapplied even from a Biblical perspective, (This means that childrenconverted by a belt din are classified as complete Jews even accordingto biblical law.)

This response requires clarification as to why the case ofteruntalt is deemed a liability and that of conversion classified as aclear zekhut, It is possible that a person may subsequently expressapproval for any teruntah allocations made on his behalf. At thesame time. it is also possible that he may reject such actions. Doesnot the case of conversion also contain these potential dual, contraryreactions? The child may subsequently either renounce the conver-sion or accept it willingly. Where is the distinction? A suggestedsolution is that the principle of zakhin does not relate to subsequentre!ctions or considerations. It deals with the psychological state ormind at the very moment of the action considered. At the moment acertain quantity of terumalt is set aside. it is conceivable that one mayconsider such quantity excessive and therefore not approve of theact io n. This possible consideration of a liability at the moment ofaction (setting aside terumah'i is sufficient to declassify it from abiblical viewpoint from being a complete zekhut,

At a conversion. however. there is no conceivable liability at thevery moment of the conversion itself. A potential, subsequent

12

J. suncna Cullen

rejection of the process docs not enter into the considerations at themoment of conversion. Children have no liability in becomingJewish, especially infant children. Since at the moment of conversionno liability exists, conversion is therefore deemed a completeadvantage.

Thus according to Tosafot qualms over the irreligious milieu ofachild convert cannot and should not invalidate the zekhut of theconversion even when beit din utilizes the concept of zakliin. To aninfant child, at the moment of conversion the religious observance ornon-observance of parents is immaterial. Accordingly. a futureliability should not invalidate a clear. present zekliut,'?

The issue of converting children born to gentile mothers has, ofcourse, been treated by contemporary posekint,": Of special interestis the position of get/of doreinu, Hagaon Rav Moshe Feinstein."? ofblessed memory. This writer some time ago sent a draft of this paperto R. Feinstein for his comments and criticism. His grandson. RabbiMordechai Tendler, who acted as his assistant and spokesman, wrotea response, dated Rosh Hodesh Kislev 5746 (November 14, inwhich he stated:

Though within your pi//I11/thac arc items [with which]. pcrhupx, we do notagree, the basic approach is upparcnt to us and on numerous occasions wehave so ruled. Yet in ull CilSCS we try, whenever il is possible. 10 set uparrangements for the observance of III;IS\'O/. [Thai is] that the parents shouldagree to provide a Jewish education for the child. or that they should ugrce tocat only kushcr [food] in the home. or Ihal they will nOI violate Shubbutpublicly or all [these conditions]. This oricuuuion was noted by IIl1Jr; /I-:('K('I/;.in his rcsponsurn [Iggt'rol ,\!oshd Yoreh De'ah, Purt I. No. 15X.

Concerning an adopted child. it is not so simple 10 consider one whore'II'S him to be like a tathcr in this maucr according to Din. but most likelysuch is the case. I'

More recently. R. Feinstein's last volume of lggerot Moshe includeda responsurn to teachers at a day school where a substantial numberof the students had gentile mothers who had not been properly

'I converted. His advice was to convert the children:

They do not need kabbalat 111;/.1'1'0/ und can be converted a/ da 'at bei: din, It isa :,,1.:11111 for them: inasmuch as they arc learning in a rcligiuux school underthe t utcluge or pious teachers. they will probubly grow up 10 he shomcrriTorah; while this is not certain. it is ccrtuinlv a zelclru], And even if t hcv do notgrow up to he .'!"'III('r<,i Toruli. it seems loiicallhal il is still a =<,1.:11111: as evenJewish sinners have ":/'dIlS/1I11 Yisrael> the lIIil,"\'OI thut t hcy do arc lIIiISI'{1/.and their sins arc to them unintcntional. Thus they have a greater =C'I.:IIIII ihn nbeing gcntilcs.!"

Orthodox Jewry is becoming a Fortress separated from thegeneral Jewish community. We feel it should not simply write off vast

13

J,I

'. I

II

I"iIiI

!I

numbers of transgressors as outcasts. As long as Hulakhah providesa device to properly convert children or intermarriage. this deviceshould be utilized aggressively to make contact with vast numbers orJews. It is an opportunity to crystallize rabbinic initiative andleadership. Should, for example. the belt din require a day schooleducation as the essential requirement Ior conversion. then suchchildren, at least, have a probable chance or becoming true TorahJews; A public policy of conversion before a proper heir dill placesthe process of conversion exactly where it should be: in the sphere ofcompetent benet Torah knowledgeable or Halukhah.

Our concern is not to suggest authoritative halakhie policy oneither side of the issue. It is, rather, to present an option that requiresthe forum of halakhic dialogue by scholars. We hope that thisdiscussion will serve as a frame of reference for the decision.

NOTES

I. R. l lluwy's c0111 11'01' published in /J('I' israeli), IX64. :"0.52. R. I'lilde,heimer's pIIsitiulI "'"published ill Ikl' Isruelit; IXC,5. 1'\11. 5. III the sume ycur, R. Kali'ehe!'\I'!"1I1e " pcr,ullalresplln,um III R. Hilde'heimer concerning this i,sue. In Ihe 1-..·.\I.,..III'(li =1I11/1'i"I'=ig;t/ilI'igl'll.·ll/lIsjllhi/,1/I11/ cI,'" 1"'1'1'1/ Ut/h/>il/"I' /JI'. St/I"II/"1/ Car/ht/cll il/ I.II""d, {Jul\" 16. !'llll}.,Dr.Mde'r I-likleshdmer hrouglll as his ...ontrihution lu the \"ulume a eorrespu;ll!cnee hel"wlIhis father Dr. En-iel Ilillleshdmer and Ie lIirs...h Kali,...hcr 01" Thurn. This ex ... hange IliI'sllh,el/llently indllded in lhe Responsa ul" R. E/rid Hildesheimer. Nus. 221}. 2.1U [l.ulIllull.l')h9].

Ill' the disputants wa, a great:rorah ,dwlal:. R. Kali,cher wa,known as a harhinger Ill' the Zillni,t idea. Thllugh hi, Illt"t falllllus work. Ikl'i"lwlEi,I:I'''II. was an allempt lu legilimi/e Zillnisl ellncerns within the religious healsll puhlished (WIl majllr halakhi... Illlumes enlilled /:'1"'/1 Holl/l11 and .I/"=/Ia.rilll la-oIlisllJlIII. He was Ihe mhhi of TlwrIl anll as a yuuth \la, a disdple of tWII lInirers,i1lya ...daimed ma,ters III' lIalakhah: R, Akila Eiger Ill' Pllsen and R. Yaakul' or I.is>a( l.11rherhaulll),

R. Hilllesheimer W.IS the Ra\' "I' Ihe Allas Yisrod Orl!wd"x Congregation "I' Bcrlin.In IK7J he eSlahlished a Rahhinieal Seminar\' of which hc \\'01' Rosh ha-Ye,hi"l. 'I;hisyes hi 1':1 hecame a eenlml instilulion fllr the tr;lining Ill' Orlhlld.l.\ rahhis in Eul'tlpe. A, aylHllh he stulliell undcr R. Yauk,,\' ElIlingcr Ill' AII""a. the acclaimcd scholarly author ojthe ..11'///;1I /lI-N.,1' "'''111me IIIa fies "n Talmull.

2. SI'l'idd 1:,,11. Vo!. II. I'lII'..II Ih·id,. Re'p'"1,a.95-%.J.•ec Igg"1'II1 ,\losh,'. 1'01'1'11 [kid,. Nu. lo:!: abo R. Y"scl" Hcnkin. UaIUII'dl'.f, Sepl. 19115.p. 7.

4. Dayan Yil,hak Yaukll\' Wciss. Respllnsa ,\Iil/llllI l'i/,,'/wk, \,,,1. Ill. N". 'N,S. Sec I{. ShlulllO Kluger' I RC!'t{llHll'la "1".,\' Tail/II ,'u-Ihlell. Vul. 2. III] whu Ihal

J..a/>/>alal /IIilSl'OI with"uI /IIi/ali and 1"I'i/all i, me'lIlingless. Yel. /IIi/ali anll 1<"'il,," nCIlwitlloul a prillr ka"/>"I"I /llilS""1 i> sufficienl 10 \'alidale the e""\'crsion frnm a lIihlicall'iewpoinl. Inlleell. he noles Ihat Ihe requirement "I' kahhal"llI/il.""OI prillr ltlolher riuml>is hnl a Rahhinie law. '

O. Bah. 'IiiI', I'lII'..II n('ill,. 26X.7. ·Iill'. l'on'I, Ikilli. 26K.K. Respllnsa Maharam Sehik. Vol. II. )'''''''/> n,'<,11 2.JX,9. Respunsa "''''(I/III11,'tll..-/l,,'jI, )'Ol''''l n,'illl K7.

14.,

"

10. Responsn n"<II ;":,,11,,". :\0', 147-14X.II. See Arukh /w-S/II/II1lIl/. )'orl'lt De'ah 26K: 1.1. whu cites ull thrcc thcuric».12. Responsu U"/lI/lI SIl/el', )'"r..1t IJe'lI11 :!5J.13, Respousu ..11tit'=..I', POI 1'1 III. ;0.: u. 2X.

One schulur ,ugge,t, tluu when a .lcwixh luther hring, his child thorn to a genlilemother) to bvit dill 1'''1' cuuverviun, suhscqucut renunciation uf the conversion is 1I0tpcrmiucd. Hi, rutiunalcis ,I, lullow»:

Rurnbam permit> .Ielli,h suldier» during a liar. under certain c ircumstuuccs. to halesexual rclutionswith gentile women I//i/k/wl ;\(('/I/klli/ll 1I: I). Such WIIOlen. moreover. arcgrunted all uptiun III convert tu Judaism and remain as Ilil'e, 01" their Jewish husbandsUhitl.. X:5). In (Ill' L'\CIlI t hat such women refuse In lhL:'y have pcrmissiou to remainin Jewish huuschold» fur a maximum :«! twelve mont hs tibid.. X:7}. Should UIIC suchwoman hecumc pregnant as a result uf her original sexual cncuuuter with the .k\li,hsoldier, beit dill mal' convert the child while he i, vet a minor (ibid.. X:X). "".w!'Mishnct)notes Ilml Ihi, i, on R. l luna's dictum permi'lling bvit din i» convert minor childrenU:"/IIb"l 11011. It i, importu nt til note that Rumhum mukcs no reference lu the optiou "frcnunciatiun when th c child matures (Sec ibul.. 10:.1. where Ramharu rules that a minorconvert may renounce rhe cunvcrsiun UPUII muturity.) Indeed. even scholars who contendthat when palelll, couvert tugcthcr with their c hildrcn the option III' rcnunciatiuu i, nutappliL:ahk.llo not cite this ruling uf the Ramham(i/>id.. X:KI. The disuncriun may he tluuwhen a Jcwixh luther hring, hi, child to bci) din, such a child has "parl.lewi,h hluull"in hi,lineage, ,II1d no rcuunciutiou i, pcrmiucd tRe,pIll\\a R. Avrahuru Mushc Fiugerhut :\u. 16[former head. Ikit Dill Paris . Jcruvalcn; 1%.1]).

II shlluld """ he nutcd that R. Mcir Simchu uf Dvinsk rules 111011 parcmshuvc aninherent right lu couvert minor children hccuu-c Ihey sustain a nd >t'pport the children'sexistence I ""',flwkl, llokhnuth, Purashat /1"1. Therefore. r....'>tlll' R. Shmuel Kat/. AI' IkilDin. Ruhhiuica l Counci! uf Southern Califurnia. such children may nul ,uh,cquenttyrenoun...e Iheir "'IHI\'ersiun upon malurily. Rcnundaliun is an uptiununly wheu ...onl'er,iunuccurs the rriuciph: pI'="I.:llill. In UII ..:C'. Ittl\\C'\ ..:I". when:'l fillher h ..son IU IIdl dill fur ...unler,iull. a ...ulI ...epl i, IIIII applit:ahle. The rllr the

i, thL: illher...m righl gil'en tu par...nl' whll su,tain ...hildren [/)('1'1/1' SII"/II//I'/,Re,plln,ulll I. )')X6).

14, ReSp'1I1sa. I",,..'j {It/I·i.!. 1nh,IlIIl'd /J'/I'id:, rulillg Ihal pre,em " ...liIIIlS ,h"uld nut he lli'llualifi ...ll he<'au,e "I"

premunitioll' u\er fUlure "h,cn,lIlt:e may he hublered hy Ihe following:

The Talmud (/it'I'l/J..II"1 Ilia) record, lhal Killg Ik/ekiah II;" infonnell hy I Ill: pruphet."Sel thy house in urller. for Ihuu shall llie and not lil'e" [Isaiah .1X: I]. What is Iheme,lIlillg III'"lhuu die and nUl lile'!"Thuu ,h,11t die illlhi> wtll'ld and nutlile inthe wllrld lu t:llme. lie [lle/ekiah I said lu him. "II hy h"d'!" Iisaiahl replied."\lceau,e I'tlll did nuttr, lu h'l\e ...hildren,"lk said. "The rea,un wa, 111:11 1'0111' hl'lheHuly Spi,:il that lhe chiidren i"uing frum me \luuld Iwl he linu"u,."llsaiahj sa'id IUhim, "What 11'l\e \,outu d" wilh Ihe seerel, uf Ihc AII-/l.lcrcilul'! You ,huuld h:l\e donewhal I'''U \lere and kt the lIuh' One. Ille"ell he lie. llo Ihat \\hichplea,e; II im." .

Frum thi, lie llerile the rule thai man nlu,1 'Iril'e lu ll" a lIIil.II'l/I, elen Ih"lIgh IherUlure re,ull may he ominllus. /l.lan\ I'llle is til uh,erl"C a presenl lIIil.'I·all allli nul dell'a"'lfrllm ,ud! Ilh,en'1I1...e llue til prenlllnili.HI> uICl' Ihe future. The ,ame applie, tu IhecUIllL:r,iun uf a ...hilll. It, present sWIUS uf:1 lIIil.II'l/1l may nUl he lli>lIualiried he ...allse of

on.'r pruho.thh: future The COlltcnd Ih•.Il although...hildrell Illay he eli!. his ehildren\ L:hildr<'n Illay yel he l'ighletllis [Sec /.r.r/l ll

rClIlkr".. Hill )"lIlIklH', IJerl/A/un lOa]. Sil11ilarly. a CUIl\"l.:'rl l11ay gruw up in anhOllle hUI red pride in his .Iewi,hne's. lie. or el en his child" ehilll. Illay yct rct urn III Torah .The "Baal I"eshlllah" Illll\elllenl Ihroughuut the worlll Ihis ...on...epl.

IS. This ,:xphlnatiun challenge, the pu,ilion of I{ahhi .I. Dal'ill Bleich Ihat Ihc T."mud il,e1fnegale, Ihe lalidily ur ...hild eOIlICrt, rearell by unoh,enant parenls. Hi, argulllenl i,:I>1'0 IIll\\',:

Referring 10 our Talillullit: leXl. R. IIlei ...h lhat ,hould Olle eoneci' e or "silualiull \\hcl'a:in pl,u,,'a:. then it is c\idclll thai till' b tlP 'k/IIII. 1\

15

..;

child reared in an irreligious home certainly tasted sin and should be comparable.r> who prefers a dissolute life.

Yct. even this objection R. Bleich counters by noting the position of Tos;ll'lll.Sanhedrin Clllb. that the Iwr converts himself and docs not need the principle of :lIkhill,Accordingly. the fact that the conversion is not a complete zekhut should not invalidate theprocess [liul'lIrd".I. Vol. 5K. No.2. Nov. 19K3. pp. 17-19J.

This position simply may nol be derived trom rhe rext.A. The Talmud in A.·l'lI/hOI deals with minor children. including a child ofseven or ten

years of age. (Indeed. the Shulhan Arukh[l'ol'l'hlJ,''ah 261<:7] rules that R. Huna's dictumrelates to children who come to beit dill I)\' thcmselvcs.) Such children have been reared inagentile home prior 10 conversion. have not observed. commandments prior toconversion. They could. conceivably be described as "living in sin." Yet, the Talmud stillmakes the distinction between a minor and '"I ad ult , /1 savs a minor has "nOI lasled sin";namely. <I minor's experience with sin is not equal to thaI "r an adult. Hisjudgmcnr "Iluingsin over commandments is not grunted validity.

The fact Ihal all minor childrcn regardless of age arc acceptable for conversion. clearlyindicates that the milieu of the child convert has no bearing on the legitimacy of theconversion.

B. Just as the past of the child has no negative overtones. neither docs the future.RiHuna is concerned only with the psychologicu! slate at the moment of conversion. TheIact that the child may subsequently renounce the conversion docs not retroactivelyinvalidate the conversion while he is still a minor. The zckhut of conversion relates onlyrothe conditions at the time of the conversion. Since all children arc deemed 10 be ina Slate (Ifinnocence. the conversion is considered a complete :I'J..hut,

Rabbi Elyu Pruzhincr notes thut the principle of zakhin has legill standing for a minoronly if <It the moment utilized there is a dear privilege accruing to the minor [ifalikiwi1:.7Zl'ultll. Part J. E"/'I/ ha-Ezer, 33]. R. Pruzhiner's theory has been erroneously cited asspecifically rcluring III conversion. i.e.. that the privilege must be evident at the lime (Ifconversion and not be based upon the possihility thereof in Ihe future. [See R, MelcchSchachter. "Various Aspects of Aduprion;" Journal Ilalakha and Contemporarv.'10";1''.1'. Vol. IV. Fall 19K2. p.IOI: he cites ch, 31.] Halikhot Eliyulu, articulated a genera!rule and never explicitly related it to conversion, Indeed. as noted. the halakhic status ofinnocence 01':1 minor deems all actions on his behalf as a complete zekhut at the timeofconversion.

16. Rabbi Shelorno Goren. in his capacity as Chief Rabbi of Israel. ruled that belt dill mill"convert the minor child of a Jewish luther even in an instance where the mother docs nutconvert hersclfand remains a gentile. Hc.jnorcovcr, openly declared that kubbalat mitsvotis not applicable in the conversion of a minor. In the event lhat/.','ilah must be postponedto a date subscqucnt to rhe circumcision [e.g .. for an infant) he maintained that sucha childshould be registered in Isracl as "/IIir.l'ulte""(becollling Jewish). However. whenall ritualsare completed, such a child may be registered as a full-fledged Jew [" £li/ll/fu)'or "'·(i.'f111sltel Ketanim;" Shana ",'·SIII/I/o. 5744. pp, 151-155]. At no time docs R. Goren evensuggest that the conversion may be invalidated because of the status of the mother (II' theirreligious milieu of the family. This appears to curroborurc the thesis presented.

17. See '1f1f1'1'tJ1 Moslt«, Yoreh Dcuh, Vol. I. No. 158.where R. Feinstein rules:I. The concept of zakhin is not uppticable whcn a father brings his son 10 beit dill Ior

conversion. .2. A Jewish father mar bring his child born III a gentile mother to ""il dill for

Even though such a person is not the ha lukhic father. he yet has the uuthoruyto convert his child.

R. Feinstein also adds a nuance of pragmatic impurtance rcluting to the conversion ofchildren. He suggesls Ihalil would be proper (1/I1k1"", hadavar) 10 rc-irnrnerse childconverts in a mlk veh when they reach maturity. Why? In our country it is nul so certuin. hewrites, thaI conversions of children arc a complete zekhut since it is probable thai thechildren will not observe ShaM1U1 and may violate other prohibitions, Notwithstandingsuch concerns. the conversion is still a zekhut, for Jewish sinners arc deemed bcucr thangentiles. In addition. perhaps the zekhut is simply the.fact that a child consents 10 do thatwhich his father requests. Also. when the mother converts. Ihe zekhut is complete. Assuch.it is probable that the conversion of children is. indeed, a zekhut , Yet. to eliminate anyqualms over the mailer. it is advisable 10 re-immcrse the child al maturity,

16

Ii, To insure that the contenls were fully ullderslll(ld. I culled Rabbi Mordc: cndlcr toreview the leiter, I noted that he used the phr,lse """11 lI/i.\luutlli/l (we try} It1 acquire acornmilJlIenl Ior mitsvo: and qucstioned him as tu thc lurtukhuh shoulu such enueanlrs heim(lossihle llIachie\.:, His response was. "We do nut invalidale the conversion."

,\{o.\".'. {''''I·IIIIt/-/::/',., V"IA. ({espon,um 2/'1J,

17