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Monday, December 05, 2011

Vayishlach, Breishis 34:2. Matrilineal Descent.

Shechem assaulted Dinah, the daughter of Yaakov.  Chazal tell us that this episode resulted in the birth of a daughter, Asnas, who was adopted by Potiphar (and, as in the case of Moshe Rabbeinu, her adoptive family gave her this Egyptian name).  Asnas ultimately married Yosef.

Coincidentally, I saw a remarkable idea this week.  We are all familiar with the rule of matrilineal descent (Kiddushin 68b and Yerushalmi Kiddusin 3:12 and Bamidbar Rabba 19:3), that Jewish identity descends through the Jewish mother.  If a non-Jewish man fathers a child with a Jewish woman, the child is Jewish.  (This was not necessarily true prior to Sinai- see Ramban Vayikra 24:10- but that is not the topic of this discussion.)

There might be two major exceptions, or caveats, involving this rule.  They are minority opinions: neither is widely accepted.

1.  The Mahrshal in Yevamot 16b and the Maharit Algazi in Bechoros 47a.  They hold that such a child is only Jewish if he/she was raised as a Jew, i.e., that he/she conducted him/herself as a Jew.  Once the Jewish identity vests, it is, of course, permanent.

2.  There is one Achron that holds, or at least, proposes, that the child of a Jewish mother and gentile father is Jewish only after the child is born.  During pregnancy, the fetus is not Jewish.  The child only becomes Jewish at birth.

This is the opinion of Rav Eliahu Poisek (A Ukrainian Rov, see end of post, in his Marbeh Torah on Hilchos Ribbis, end of Siman 159).  It is brought down in the Darkei Teshuva there in Yoreh Dei'ah.  It can be seen here.  This is what he says:


 עי׳ מ״ש בסי׳ ק״ס ס״ק  מ״א דגם בישראלית
 שמת בעלה והניחה מעוברת דיש להסתפק להתיר ללות ולהלות על נכסי העובר ברבית
 ע״ש הטעם כ״ש בנתעברה מעכו״ם ואף אם היא אינה מומרת מ״מ י״ל כמ״ש בהסכמתי
 לס׳ זבר טוב להרה״ג ר׳ זאב פהפערש בהערותי לכורת הברית (דף ק״ל) דאף
 למ״ד דהולד כשר וא״צ גירות דוקא אחר הלידה בישראל . אבל במעי אמו עדיין
 אינו כישראל [דחלקיה קרא זרע אדם וזרע בהמה לחוד חולין ה'] וס״ל  כרב יוסף
 דגם לר׳ יוסי עובר במעי זרה אינו זר עי׳ יבמות ס׳ז ועי׳ רש״י נדה (מ״ד ע״א )  ד״ה
 ולאפוק׳ מדר״י והנפ״מ לענין לחלל שבת עבורו ע״ש [וי״ל בזה קושית הבאר שבע
 בסנהדרין צ״א מב״ר ע״ פ  ויתרוצצו הבנים ע״ש וכן י״ל סתירת הש״ס דביומא צ״ג
 קרו עליה זורו רשעים מרחם ויצא שבתא• ובסנהדרין צ״א משמע דיצה״ר שולט רק
 משיצא לאויר העולם .  די״ל כמ״ש תוס׳ גיטין י״א דשבתאי שם עכו״ם ושם מסתמא
 נתעברה מעכו״ם ואסקי ליה בשמה דאבוהו ובנתעברה מעכו״ם שולט היצה״ר במעי
 אמו ואף לרבינא בסנהדרין ק״י דמשעה שנזרע בא לעוה״ב י״ל דוקא הבא מזרע
 ישראל וכמ״ש ומספר את רבע  ישראל ואכמ׳׳ל] וא״כ ה״נ  לקולא י״ל דהוא כעכו״ם
 עדיין דשרי נכסיו ברבית אף על ידי אפוטרופוס שלו שהוא ישראל וצ״ע:

(This would generate numerous halachic ramifications.  Examples: Ribbis to and from his estate; piku'ach nefesh; whether he can be yoreish at that point; and, most importantly, how many chickens you 'd need for kaparos.)

This is obviously only one Rov's opinion, and would not constitute citation to authority.  In fact, it's not in the sefer that he says he said it in, his כורת הברית, and I think he regretted saying it and took it out.  But I have another surprise for you.  You will see that although Rav Poisek is the only person to say this explicitly, it is clear that there are others that will find themselves painted into the corner with him.

There are Achronim that hold that during pregnancy, the mother is not legally denominated as "mother" of the fetus, but the father is called the "father" as soon as the pregnancy becomes evident.  I'll bet dollars to donuts that these Achronim didn't realize it, but it seems to me that if you accept their svara, then the chiddush of Reb Eliahu Posek is concomitant.  Although the mother's religious identity is dominant over that of the father, that's only once the woman is called the child's mother.  According to these Achronim, during pregnancy there is no legal mother, only a father.  If the father is a goy, then of course the child is a goy.  But once the child is born, and he has a mother and a father, then the mother's religious identity is absolutely determinative.

(I realize that אפקריה רחמנא לזרעיה, Yevamos 98a.  But I don't need for the עובר to be misyacheis to the father to make him a goy.  All I need is that he's not misyacheis to a father who is a Yisrael.  If he has no yichus to a Yisrael father, and he has no mother l'halacha, then by default, he's a non-Jew.)

And who, you ask, are these Achronim?  Are they mischievous Poilishe Pilpul People?  Or obscure Ukrainian Rabbanim?  Nope.  They are Reb Yosef Engel and Dayan Fisher.
Reb Yosef Engel is in his Beis Ha'Otzer, Klal 4, Av, and it can be found here.  Dayan Fisher is in his Even Yisrael on the Rambam in 16 Ishus 7, and can be found here, in the third paragraph.

If you think about it, you'll realize that the Maharshal wouldn't be shocked, either.  If the status of such a child is only fixed if he is raised/acts as a Jew, then there must be a period of pendancy.  His status is to be later determined- at which point his status is retroactive.  Perhaps it's only retroactive to the moment of birth, but not to the moment of conception.

And if you take this to its natural conclusion, what about a Jewish man who fathers a child by a non-Jewish woman?  Would these poskim say that during the pregnancy the fetus is Jewish, and only becomes non-Jewish when it's born?

Anything can happen on Torah Avenue.

Because this is the internet age, and you can find out all different kinds of things about all different kinds of people, here's a paragraph from the Wikipedia article about the Posek family, evidently written by a family member.

Rabbi Hillel Poisic (15.1.1881 Zlatopol,  Ukraine – 1953 Tel Aviv, Israel ) was a communal worker and Torah Scholar.  He was an expert in releasing agunot....
The Poisic (also Poisik, Posek, Possek) family is a rabbinical family originated in the Shapira family and connected to it in marriage relationships. The Poisic members were active in Ukraine.
Rabbi Hillel Poisic's father, Rabbi Elijah Poisic (1859-1932), was one of the most important Rabbis in Ukraine. He served as rabbi in Mohlika and in Zlatopol and composed Responsa and halakhic books about Sukkot, Maimonides and the letter of divorce (get). His expertise was in circumcision law. His mother, Matalia, daughter of Zwi Sonik, was the granddaughter of Rabbi Chaim Chaikel Shapira from Kalininblatt (in Kiev district), father of Rabbi Judah Josef Loeb Shapira, president of the rabbinical court in Rakhimstrivka, and R. Israel Volodarsky, president of court in Petrikovna (in Kherson district). Rabbi Hillel studied Torah with his father and grandfather, Rabbi Moshe Zvi Poisic. He received his ordination  as rabbi by the most important rabbis in south Russia, Rabbi Moshe Nathan Rubinstein from Vinnitsa and the Rabbi Yosef Halperin, president of the court of the Jewish community in Odessa.

14 comments:

great unknown said...

Doesn't Reb Moshe also bring the shita of the necessity of the child being raised Jewish?
I don't trust my memory, but I think I discussed this with Reb Reuven Feinstein, and he confirmed it.

If it were true, it would certainly save me a lot of lo sisna issurim legabai many of the so called Jewish Leaders who do damage to yiddishkeit everytime they speak.

b said...

I don't believe it's printed, but I remember him saying so; everyone else says I'm imagining it.

great unknown said...

It's in the Dibros, but I don't remember where.

great unknown said...

Boy is that a snif l'hatir for an abortion...

b said...

Yeah, you're right about that thing with Reb Moshe. Now I remember. Reb Reuven agreed with me, it was Mordechai that said lo dubim velo yaar. I'm changing the post to reflect that.

As for the second idea, that for sure is on the fringes.

great unknown said...

When it comes to being out in left field in halacha, I play on the warning track.

Eli said...

This Beis ha'Otzar became popular in the context of surrogacy. I didn't get his proof though. From the Gemara Megilla one can only show that motherhood can be created up to the birth, but one can very well think that any part of the pregnancy process from Ibbur to Leida could initiate motherhood. This seems to be the case if we hold that הורתו שלא בקדושה ולידתו בקדושה requires Geirus, as does the Tosfos Bechoros 46.

b said...

If the Beis Ha'Otzer is well known, then chances are that Dayan Fisher saw it and was inadvertently quoting it.

But do you agree with my conclusion, that Reb Yosef Engel would have to agree with Reb Eliahu Posek?

Eli said...

I don't know who saw it where - the first edition of Even Yisroel is 1973, and the surrogacy articles appeared in the 80s. Specifically I remember this Raa'ya brought by R. ZN Goldberg, in Techumin, early 80s. However, I have online only the 2nd edition which appeared on 2000, so if this piece is a new one, he probably saw it there.

Your point is hard to object to. However, let's take it one step further - what about a fetus from two Jewish parents? If we take matrilineal descent at face value, Jewishness of the father should not change anything, and the fetus is still non-Jew (I know some argue that Haloch achar Hazachar also applies BeYisroel, except that Rachmana Afkra leZar'ei. put that aside). Now, this is at odds with המקדש עובר (if we assume Kiddushin there are instantaneous like the Nimmukey Y. and Rav Fisher
maalach in rambam). If the fetus is not Jewish, Kidushin is not possible.

b said...

No, because I am arguing that the mother's identity is not the only source of the child's identity, it is the dominant source. Where there is no mother, the father's identity is adequate and effective.

great unknown said...

a) as far as lo dubim vlo yaar, that is a self-defining joke. In my shas, it says lo ya'ar v'lo dubim. This is one more example of yeshivishe dyslexia to go along with kodshim, etc.

b) said yeshivishe dyslexia is probably the reason for overlooking that Dayan Fisher ultimately says that the zchus of the father in the ubar is financial, and not of yichus. As he points out, if she is not his bas, he can't be her av regarding yichus.

c) Rav Yosef Engel emphasizes that the reason for the mother not being the aim of the ubar is because ubar yerech imo. However, this automatically means that the halachic status of the two is identical until birth. So the fact that the ubar does not have a Jewish mother leads to the conclusion that the ubar is automatically Jewish as being part of a Jewish person.
Compare the halacha of a pregnant non-Jewish woman undergoing a tevilas geirus.

d) Thank you for the link to Dayan Fisher. I had forgotten the location of that Rav Akiva Eiger. From my location on the warning track that was one of my favorites forty years ago. It's the kind of question that if a bochur asks it, it's ridiculed, but when a godol asks it, it's amazing.

Chaim B. said...

>>>This is the opinion of Rav Eliahu Poisek (A Ukrainian Rov, see end of post, in his Marbeh Torah on Hilchos Ribbis, end of Siman 159).

This may not be a fair question, but I can't help but wonder how in the world you dug this up. Kinas sofrim is getting the better of me.

b said...

OK, honesty time.
1. I heard about the Marbeh Torah from someone who heard it from someone in the local Choshen Mishpat Kollel who is learning Ribbis, since it's at the end of the Darkei Teshuva on Ribbis. Even when I learned Ribbis, I never saw it.

2. When I told it to a cousin/nephew who is learning in a different Kollel, he told me that in a recent speech, he talked about Reb Yosef Engel's chiddush in the Beis Ha'Otzer. I later found Dayan Fisher said the same thing. At least that I found all by myself.

3. All I did was to point out that Reb Yosef Engel's chiddush seems to inexorably lead to Reb Eliahu Posek's chiddush.

4. I believe that Rabbi Posek realized that what he said was completely שלא בדרא דאונא, and he erased it from his other sefarim, and the Darkei Teshuva only put it in because it's amusing.

Eli said...

As far as jewishness is concerned, a non-Jew mother has no status, and not a negative status, so she is the same as no mother (nationality is anyhow determined by the father, so being Amonis, Moavis etc is not relevant). As I mentioned, I can understand your position if we argue that it's only because of Rachmana Afkra leZar'ei we ignore the jewish father in case of a non-jewish mother.

But, I now think that grunk is correct that as RY Engel (and Maharal) explain their Hiddush through yerech immo, there is no question that as far as there is a concept of yuchsin for the fetus, it's jewish as part of the mother.