YUḤASIN


YUḤASIN
YUḤASIN (Heb. יֻחֲסִין), laws dealing with the determination of an individual's personal status and its legal consequences insofar as such a status derives from a person's particular parentage. From the beginning of Jewish history, the ascertainment of an Israelite's yiḥus , i.e., genealogy or pedigree, was considered of utmost importance, as is evidenced in Scripture (Num. 1:2, 18 and Rashi ad loc.; Ezra 2:59–63; 8:1). According to the Talmud, a person's yiḥus was also of importance with regard to the amount of the "main" (or statutory) ketubbah , as for a certain period of time it was ruled that it should be increased beyond the regular minimum in the case of the daughters of priests and of other distinguished families (Ket. 12a–b and Tos. ad loc., S.V. bet din shel kohanim). -Determination of Paternity A person's yiḥus obviously cannot be established unless the identity of his parents is known. Identifying the mother generally presents no difficulties but to identify the father it is necessary to distinguish between the offspring of a married and an unmarried woman. The offspring of a married woman is presumed to have been fathered by her husband, according to the rule that the majority of cases is to be followed, since for the most part a woman cohabits with her husband (Ḥul. 11b; Sh. Ar., EH 4:15). Therefore if the husband denies paternity the onus is on him to rebut this presumption; he will succeed in his claim if he can prove that factually the child cannot be his, for example, if he was away from his wife and never saw her for an unbroken period of at least 12 months prior to the birth of the child (Sh. Ar., EH 14). When a child is born less than 12 but more than 10 months after the husband's separation from the child's mother, the matter will depend on the facts in each case (although the matter is not undisputed in the codes; see Sh. Ar., EH 14 and Ḥelkat Meḥokek to 10 and 11): if on the evidence of the mother's conduct there is reason to suspect that she has committed adultery, the court will not be bound by the usual presumption and may decide that the husband is not the father of the child (Rema, EH 14); if, however, there is no basis for any such suspicion, it may possibly be held – unless there is some evidence to the contrary – that the fetus tarried in its mother's womb beyond the normal pregnancy period (270 days) and the court may rule that the husband is the father of the child. The presumption of paternity does not apply where the husband expressly denies it and there is no evidence that he has cohabited with his wife during the relevant period. It must be clear, however, that his denial is based on his own conviction and not on mere speculation, and is in no way contradicted by his own conduct, e.g., if hitherto he has admitted his paternity – expressly or by implication. This halakhah, known as yakir ("acknowledge"), is based on Deuteronomy 21:17, from which it is deduced that the husband may acknowledge and designate a particular son as his firstborn, in preference to other sons born to his wife after their marriage, even if such a son is younger than the others – the husband thus implicitly declaring that the other ones are not his, but are mamzerim born to his wife through adultery (Kid. 74a; Sh. Ar., EH 4:29; PDR 3:97–108). The husband's declaration of a son's bastardy, however, is not believed if the son already has sons of his own, since because of the rule that the son of a mamzer is also a mamzer this would taint them with bastardy as well, and the Torah has not conferred so wide a power upon the husband (Sh. Ar., EH 4:29). On the other hand, as long as the husband himself does not deny paternity, the wife's declaration that he is not the father of her child will not be accepted as sufficient to exclude the husband's paternity, and this is so even if a third party admits to being the father of the child (Sot. 27a; Sh. Ar., EH 4:15; Rema, EH 26:29; see also PDR 7:281, 289). Various questions arise in the case of a child born as a result of artificial insemination . In the case of the offspring of an unmarried woman the onus is on the child to prove (through his mother) that the defendant is his father. This is so not only because here the presumption of paternity as in the case of a married woman is inapplicable, but also because the mere fact that the defendant and the child's mother had sexual relations does not necessarily warrant the inference that the defendant is its father (Yev. 69b; Resp. Ribash, nos. 40 and 41). Differing opinions are expressed in the codes on how paternity is to be proved. In the Shulḥan Arukh it is laid down as halakhah that the defendant's paternity may only be proved by his own admission (EH 4:26   and Rema thereto; Resp. Ribash, ibid.). Such an admission need not necessarily be expressed and it is sufficient if facts can be established concerning the defendant's conduct from which an admission of his being the father may be inferred: e.g., his taking the mother to a hospital for her confinement, or paying the hospital bill for the mother or the child, etc. (Resp. Rosh 82:1; Oẓar ha-Posekim EH 4, no. 108, 4). -Rules of Yuḥasin The following four categories of offspring are to be distinguished: offspring of parents married to each other; offspring of parents not married to each other; offspring of parents of whom only one is Jewish; and offspring of unknown parents. OFFSPRING OF PARENTS MARRIED TO EACH OTHER A child born to a marriage which is valid and not originally prohibited between the parties (see marriage , Prohibited), is kasher (of unimpaired status), i.e., his (or her) marriage is permitted to any kasher Jewess (or Jew; Kid. 69a; Sh. Ar., EH 8:1). Such a child takes the father's status, not that of the mother, in accordance with Numbers 1:2, 18 (and Rashi ad loc.; Sh. Ar., EH 8:1). Thus, the son of a priest and an Israelite woman will be a priest and one born of an ordinary Israelite and the daughter of a priest will be an ordinary Israelite. If the marriage of the parents is valid but originally prohibited, the child's status follows that of the tainted parent (Kid. 66b; Sh. Ar., EH 8:4). Hence the offspring of a marriage of which one party is a mamzer (et), will also be a mamzer (Kid. 66b; Sh. Ar., EH 4:18); similarly, the son of a priest and a divorcée is called a ḥalal (חלל), i.e., profaned, and is unfit for the priesthood, while the daughter of such a marriage is called a ḥalalah (חללה) and can not marry a priest (Lev. 21:7; Kid. 77a; Sh. Ar., EH 7:12 and 8:4). Since the laws of the priesthood apply only to priests of unimpaired status (kesherim) there is no prohibition against a ḥalal marrying a divorcee (Sh. Ar., EH 7:20). Except in matters of priesthood, the ḥalal suffers no defect in status and he or she is allowed to marry an Israelite woman or man of unimpaired status (Sh. Ar., EH 8:2). A marriage between such parties not being prohibited, their offspring follows the father's status; i.e., the daughter of an Israelite and a ḥalalah is not profane and is permitted to be married to a priest, but the daughter of a ḥalal and an Israelite woman is also a ḥalalah and so must not marry a priest (Kid. 77a; Sh. Ar., EH 7:16). OFFSPRING OF PARENTS NOT MARRIED TO EACH OTHER The mere fact that a child is born out of wedlock does not taint his personal status, nor is he thereby rendered unfit for the priesthood (Yev. 59b–60a; Sh. Ar., EH 6:8). Even though it prohibits fornication, which is punishable with flogging (Yad, Ishut 1:4), Jewish law, unlike other legal systems, does not render a child illegitimate, with its rights affected, merely because it is the issue of an extramarital union. The sole legal difference – in the present context – between such a child and one born of parents married to each other concerns the question of proving paternity (see above). Upon proof of paternity, the status of a child born out of wedlock is determined in the same manner as if it were born to parents married to each other. This applies only if (at the time of conception) there existed no legal impediment to a marriage between the parents of the child. However, if the parents were not in a position to contract a valid marriage with each other even if they had wished to do so, because their cohabitation would have amounted to incest (including adultery) according to the Torah (i.e., a union between parties prohibited to each other according to biblical law and for whom the punishment is karet or death), the child will be a mamzer and his status thus impaired (Kid. 66b; see marriage , Prohibited). OFFSPRING OF PARENTS OF WHOM ONLY ONE IS JEWISH Here the rule is that the child takes his mother's status (Kid. 66b; Sh. Ar., EH 4:19). Accordingly, the offspring of a non-Jew and a Jewess is a Jew and is legitimate, subject to the limitation that a priest should not marry such a daughter, or unless the mother is herself a mamzeret; in this case the child is a mamzer, and this is so even if the Jewess is a married woman whose adulterous relations with a Jew would have made the child a mamzer (Sh. Ar., EH 4:19 and 4:5 with commentaries). On the other hand, the offspring of a Jew and a non-Jewish mother is not a Jew, regardless of the will of the parents, since the matter is determined by the objective facts alone. The child therefore can become Jewish only by first being a proselyte , in the same way as any other non-Jew. Here the status of the father is totally irrelevant and the child, after proselytizing according to Jewish law, will assume the status of a legitimate Israelite like all other proselytes; even if his father is a mamzer this will not affect the status of the proselyte child (Kid. 66b, Rashi ad loc.; Sh. Ar., EH 4:20). For the case of a child when either one or both of its parents is unknown see mamzer . -The State of Israel Questions of yuḥasin and paternity are apparently regarded as matters of personal status within the meaning of Act 51 of the Palestine Order in Council (1922), and therefore are governed by the personal law of the parties concerned – Jewish law in the case of Jews. The Supreme Court of Israel, however, has so far refrained from adopting a clear stand on the matter and has left it as a quaere (PD 5 (1951), 1341ff.; 17 (1963), 2751, 2755). On the question of under what circumstances the offspring of a Jew and a non-Jewish mother can be registered as a Jew for the purposes of the population registration law – registration which in itself does not serve as proof that the person registered is a Jew – the Supreme Court has held, by a majority of five judges to four, that the subjective declaration of the parents should suffice unless it is obviously incorrect (PD 23, pt. 2 (1969), 477–608). With regard to the modes of proof of paternity of a child born of an unmarried mother, the Supreme Court has decided that the general rules of evidence and not the rules of Jewish law shall apply (PD 5 (1951), 134ff.). (Ben-Zion (Benno) Schereschewsky)  anfang des <p>Artikels </p> -Those Not Allowed to "Enter the Lord's Congregation" According to Biblical Law and the Rabbinical Solutions The Torah (Deut. 23:4–9) lists certain nations from which no individual may be accepted as an Israelite: Ammonites, Moabites, Egyptians, and Edomites. With regard to the first two, the biblical prohibition applies across the board, with no limitation in time or number of generations, and is justified by observing that "they did not receive you (the Israelites) with food and water along the way when you left Egypt (…) and they hired Balaam son of Beor, from Pethor of Aram Naharaim, to curse you." Regarding the latter two nations, the prohibition is limited to just two generations, so that a third-generation descendant of an Egyptian or of an Edomite could be accepted as a Jew. Moreover, the prohibition against the Ammonites and Moabites was restricted by tannaitic authorities to males alone (Mish., Yev. 8:3). According to the Talmud (Yev. 76b–77a), this law originated in the court of Samuel the Prophet, who announced this decree before he went to anoint David, a descendant of Ruth the Moabite, as king. Another mishnah (Yadayim 4:4) describes a dispute among the late first-century tannaim as to whether the ban was still in effect in their day. The controversy is settled with Rabbi Joshua's view prevailing: "Sennacherib came and mixed up (the identity of) all the nations"; hence, the Ammonites of their time were not those Ammonites whose acceptance into the Jewish community is prohibited by the Torah. The established halakhah holds, with respect to all four of the aforementioned nations, "Once they… have become commingled with the other permitted nations, they all became permitted" (Maim., Yad, Bi'ot Asurot 12:25), and therefore are "immediately permitted to enter into the Lord's congregation." -Efforts by the Rabbis to Avoid Determining Mamzer Status To the above laws should be added the general principle that a person is presumed to be of fit and proper lineage, even if the factual truth is that he does suffer from some taint. The Mishnah cites a tradition stating that "Elijah 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" (Eduyot 8:7). R. Obadiah of Bertinoro interprets the citation as meaning that Elijah will only distance those who are publicly known to be tainted but were forcibly intermingled among the Jewish people, "but where there is a tainted individual in a particular family, but this is not publicly known, due to the family having intermingled (into the Jewish community), Elijah will let it remain so and let the family retain its presumption of legitimacy." On the basis of these statements, Rabbi Moses Isserles rules (Sh. Ar., EH 2:5) that, in a case in which it becomes clear to someone that one of the ancestors of a given family was a mamzer, he is not at liberty to reveal this: "but rather he should let the family continue to be assumed to be as fit and proper, since all families that have assimilated into the Jewish people will be fit and proper in the future." For an extensive discussion of this issue, see mamzer . -Tissue Typing and the Establishment of Paternity in the State of Israel The Talmud (BB 58a) records a case where a man learned that nine of his children were mamzerim and only one of them was his real child. Before his death, he bequeathed his property to his real child, but he did not know which one was the real child. When the case was brought before R. Bana'ah, he ordered a test to determine which son, according to his characteristics, was the legitimate heir. Sefer Ḥasidim (§232) describes a method, considered scientific by the standards of the time, for determining paternity. Rabbi Samuel Strashun (Hagahot ha-Rashash) comments on the above talmudic source that Rabbi Bana'ah nevertheless refrained from employing the "scientific" test mentioned in Sefer Ḥasidim, because by doing so he would have revealed that the other sons were mamzerim. With the development of scientific means for identifying family relations by genetic testing of tissues, these principles have become more significant. Rabbinical courts have considered the validity of a scientific test that produces results that contradict juridical presumptions of Jewish law, such as the one mentioned above, that "most acts of intercourse are attributed to the husband." Rabbi Shlomo Dikhovsky (File 866/41 13 PDR, 51) rules that one must accept tissue typing intended to establish paternity for purposes of ruling on child support payments (see maintenance ), but for establishing mamzerut one may disqualify reliance on tissue typing because it is not infallible (p. 60). In a number of cases, the Rabbinical Court of Appeals has ruled that, even for determining maintenance payments, tissue typing to establish paternity may not be used as an absolute criterion, but there is need for supporting evidence as well. This question was brought before the Israeli Supreme Court (CA 548/78, Sharon v. Levi, 35 (1) PD 736 per Justice Menahem Elon), that ruled that in Israeli courts tissue typing for establishing paternity should be admitted as evidence. The court emphasized, however, that: „ Tissue-typing would not, in every case, establish paternity. Moreover, „ in certain instances the court may decide not to make use of this „ test, when the test is liable to label a minor as "tainted," e.g., „ when a married woman claims that while she was married she became „ pregnant by someone other than her husband, and that the person by „ whom she became pregnant is the father of her child. If true, this „ statement would result in the minor being stigmatized as a „ mamzer. In this or in similar cases involving the „ establishment of status, proof provided by tissue-typing is „ insufficient to establish paternity (p. 748 of decision). Thus, in such cases, paternity is to be established based on the juridical presumption that "most acts of intercourse are ascribed to the husband." This ruling is based on Jewish law's sensitivity to a person being stigmatized and branded with mamzer status, coupled with the halakhic principles of making   various legal presumptions in order to avoid such stigmatization. Further on its ruling, the court cites some of the above-cited Jewish law sources on which it based its ruling. In another ruling (CA 1354/92, Attorney General v. Anon., PD 48(1) 711, Justice Menahem Elon) based on these considerations, the court ruled that, even when both parents give their consent to tissue typing for establishing the parenthood of a minor, such a test should not be conducted if it may endanger the minor's best interests, inter alia raising doubts about his legitimacy, and that these interests supersede the interest in investigating the truth. The court added (pp. 739–40) that, although the rabbinical courts have no reason to suspect that such testing would fix an individual's status as a mamzer, since only rabbinical courts have the authority to do so, there are two reasons for discouraging such testing: first, acceptance of such findings in a civil court might socially brand the minor – itself a sufficient reason for prohibiting the testing. Second, there is no certainty that the rabbinical court might not change its stance and decide to recognize such results as sufficient to supersede the juridical presumptions cited above: „ Since no one can assure us that if the test is in fact performed and „ it indicates that the mother's husband is not the father of the minor, „ a rabbinic court might not accept these results and rule accordingly. „ As we have seen, the halakhah relies on various „ presumptions and fictions to preclude the tainting of a child as a „ mamzer by reason of his married mother having been „ impregnated by someone other than her husband. But as we noted, „ according to the halakhah as well, when it is clear that „ the child cannot be the offspring of the mother's husband, as in a „ case in which it has been proved that for 12 months there were no „ relations between the husband and wife, even the halakhah, „ for lack of alternative, declares the offspring a mamzer. „ Thus, several rabbinical courts have ruled against relying on tissue „ typing for proving paternity (p. 740). (See mamzer .) -Establishing Maternity With the development in the 1970s and 1980s of techniques for in vitro fertilization, discussion began as to how to decide who is to be considered the mother of a person conceived though such artificial fertilization, in the case where the fertilized egg has been implanted in the uterus of a different woman. Because no direct response to this question can possibly be found in the classic sources of Jewish law, halakhic authorities sought guidance from indirect sources, and even from non-legal sources, as to whether maternity is to be considered a function of pregnancy and birth or of the genetic source of the egg. There is no uniformity of halakhic opinion on this point. Some have ruled that the genetic mother is the mother, but a majority of the authorities who have addressed the question hold the opinion that the surrogate mother – the mother in whose uterus the fertilized egg was implanted and where it developed until the child's birth – is the mother with regard to all legal entailments (Rav Z.N. Goldberg, Teḥumin (1984), 248–59; Rav A.Y. Halevi Kilav, ibid., 260–67; Rav Z.N. Goldberg, ibid., 268–74; Rav. E. Waldenberg, Resp. Ẓiẓ Eli'ezer, vol. 20 no. 49). Evidence for this is adduced from the law cited in the Talmud (Yev. 97b) whereby twin males born to a woman who converted to Judaism during her pregnancy are ineligible to marry each other's wives (see incest ), in accordance with law pertaining to Jewish brothers. This proves that the act of birth creates maternity, for were it not so then the twin children would have been considered their mother's sons from the moment of conception, prior to her conversion, the conversion would have nullified that relationship, and they would not have been considered brothers. In the State of Israel, the Agreements Relating to the Carrying of Embryos (Approval of the Agreements and Status of Offspring) Law – 1996 establishes a presumption that the birth mother is the mother, and only after the child is delivered to the intended parents do they, by means of a court-issued parenthood decree, become the child's parents for all intents and purposes, even when the fertilized egg originated with the intended mother. Notwithstanding, the law in question (§12 ) states that the parenthood decree does not effect any change in the laws of what is permitted or forbidden regarding marriage and divorce. (Menachem Elon (2nd ed.) -BIBLIOGRAPHY: A. Buechler, in: Festchrift Adolf Schwarz (1917), 133–62, 572; L. Freund, ibid., 163–92; Gulak, Yesodei, 3 (1922), 10; A. Buechler, in: MGWJ, 78 (1934), 126–64; ET, 1 (19513), 3–5, 276f.; 2 (1949), 21f.; 3 (1951), 346; 4 (1952), 741f.; No'am, 1 (1958), 111–66; M. Silberg, Ha-Ma'amad ha-Ishi be-Yisrael (19654). ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:302f., 670, 720, 814; 3:1327; idem, Jewish Law (1994), 1:361f.; 2:828, 888, 997; 4:1585; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest) (1986), 1:166–67; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 107–9; M. Corinaldi, Dinei Ishim, Mishpaḥa vi-YerushahBein Dat le-Medinah (2004), 102–17; Z.N. Goldberg, "Fetal Implant," in: Teḥumin, 5 (1983/4), 248–59; A. Kilav, "Test-Tube Babies," in: Teḥumin, 5 (1983/4), 260–67; I. Warhaftig and Z.N. Goldberg, "Test-Tube Babies – addendum," in: Tehumin, 5 (1983/4), 268–74; B. Schereschewsky, Dinei Mishpaḥah (19934), 352–66; A. Steinberg, Enẓiklopedyah Hilkhatit Refu'it, 2 (1990/1), 128–38.

Encyclopedia Judaica. 1971.

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