The case had the potential to be tragic, thankfully was resolved positively, and I wish they would have given us a few more details about the resolution.
A married couple went before the beis din to get divorced. Fine. It happens. They got the divorce. As always, the beis din warned the woman to not be with another man for 90 days, as the halacha requires, so as to avoid a situation of her potentially getting pregnant and it not being clear if the baby is the child of the first husband or the second, which would cause problems later down the road when it would be time for the child to marry.
It seems that the woman did not heed the instructions. She came back before the beis din with a baby in hand saying the baby was born exactly 9 months from the day of the divorce. She is claiming the baby as the child of her new husband/partner, and wanted the baby to be registered as their child. This is a big problem. Halachically it is not clear who is the father, and the 3 month waiting period is meant to avoid such situations.
Upon the direction of the Attorney General of Israel, the beis din appointed a special team of dayanim for determining issues of "yuchsin", headed by the Av Beis Din Rav Yehuda Deri to investigate the matter and come to a decision.
The beis din headed by Rav Deri determined and paskened that despite the fact that the woman did not wait the necessary 3 months, the child is the child of the mother and the second husband, and is kosher to marry as any other kosher Jew, even to a kohen.
That is all the info given, and it is definitely an interesting psak. I would like to know if they used paternity tests, and if such tests can help make a halachic determination. Presumably they investigated when she had been last with her first husband and surely must have found compelling witness to whatever was discovered. I wonder what other considerations were involved in determining this matter.
Had he had any difficulty coming to a conclusion, he could have used the solution used by King Solomon when he offered to cut the baby in half and split it between the two parents as a way of determining who the real parent is. The problem is that in King Solomon's case it was a dispute between mothers. The women really knew which carried the baby for 9 months and which was just claiming to do so, and one had emotional ties to the baby. In this case it is the father under dispute, and they have no real way to know which is actually the father, except by external factors...
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I heard from a very senior personality in the Rabbinate that in Israel the Rabbanut never orders a paternity test, and I believe such tests are not even legal in Israel, as it has the potential to make someone a safek Mamzer.
ReplyDeleteAccording to halacha, if a woman was married when she became pregnant there is a Chazaka that the father is the woman's husband and the child is a kosher Jew, irrespective if there were claims that the woman had an affair, or even if the child resembles the milk man more than the woman's father. If a Paternity test indicates that it is probable that the milk man is in fact the father, she may be able to claim child support from the milk man, but the cost is that the child is a Safek mamzer - which is probably a worse state than a known Mamzer (as a Safek Mamzer can't even marry another mamzer)
interesting. thanks. Anyways I dont think on its own it would be halachically acceptable as evidence. From what I understand (though I might be wrong), dna is generally only acceptable to be a "yad" - to be supporting evidence when other evidence is present, but on its own we would ignore it.
DeleteFirst of all, it is important to remember here that there is no issue of the child being a mamzer. He is either the child of the first husband pre-divorce or of the second husband post-divorce. The only issue is whose child it is.
DeleteNow what difference does that make? One, whom he can marry later, meaning which father’s relatives have a status of arayos. Two, inheritance from one of the fathers. (You also have the bureaucratic issue of in which name you register the child. But that is not halakha, that is a secular issue.)
IIRC, there was an article in Dovid Lichtenstein’s book that discussed this. And R. Asher Weiss stated that DNA is only relied upon to free an agunah, but not for other reasons, such as inheritance. (For an agunah, the consensus seems to be to rely upon it fully. Of course, you need other evidence as well. For example, there is a dead body, and we use DNA to identify that as the agunah’s husband.)
good point
DeleteI think the question is whether the child of the second husband pre-divorce, that would raise the question of mamzerut. Without a DNA test, there is a Chazaka that the first husband is the father, even though in the days before the divorce they may have spent less time together than other married couples (and it sounds like she already had a relationship with the second husband, given that they got married so quickly after the divorce.)
Deleterafi- i believe you are correct about dna status. the question in my mind is why that is the acceoted psak. lulai dmistifina i'd wonder whether it was the fear of the consequences of establishing something relatively kal lvarer as conclusive proof.
ReplyDeleteShe-nir'eh et nehamat Yerushalayim u-binyanah bi-mherah ve-yamenu,
This reminds me of an interesting psak I saw in R. Zliberstein’s book. In Europe there was a prominent, wealthy, God-fearing Jew. He had only one son, and when he died, he left him something like $10 Million.
ReplyDeleteAbout a month after the petirah, someone shows up and claims to also be the niftar’s son, and the deceased father had had an affair with his mother. He brought some weak documentary proof, and then brought suit in a secular court to claim half the inheritance.
The secular court was dubious, but ordered a DNA test, requiring the body of the deceased father to be exhumed and a hair taken for the test (presumably along with swabs from the two potential heirs).
The son protested that halakha does not allow such exhumation nor for the body to be desecrated with hair removed. The court was unmoved. Either agree to the DNA test, or you will have to split the inheritance with the other “son.”
So a shailah was asked. R. Elyashiv zt”l paskened that one may not exhume the body for this purpose nor remove a hair.
So the son agreed to give up half his inheritance, rather than agree to have his father’s body desecrated.
Now that is kibbud av!