Beloved are the Kohanim for, when God bestows a sobriquet upon them, He always refers to them as ministering angels.
SIFRI, PARASHAT KORAH 46
Priestly Identity
Marriage between a person of Aharonic descent and a divorcée is expressly forbidden by Leviticus 21:7. As recorded by Shulḥan Arukh, Even ha-Ezer 6:8, marriage between a kohen and a female convert is also prohibited. The late Rabbi Moshe Feinstein, of blessed memory, is widely quoted as having ruled that ba'alei teshuvah, i.e., newly-observant young men, whose fathers were not observant may be permitted to marry divorcées or converts to Judaism despite the fact that they have held themselves out as kohanim. The reasoning, it is reported, is that the assumption of priestly descent on the part of such a person is derived entirely from his father's genealogical claim. Since the father was, and remains, non-observant, his testimony, it is claimed, as a matter of Halakhah, can be given no credence.
This issue is discussed in two remarkably brief responsa published in Iggerot Mosheh, Even ha-Ezer, IV, no. 11 and no. 39. The particular situation discussed by Iggerot Mosheh in his first responsum, dated 5721, involved a man already married to a convert who presumed that he was a kohen on the basis of the fact that on a single occasion on which his father was "called to [the Torah at] a bar mizvah celebration" the father stated that he was a kohen. Iggerot Mosheh describes the father as totally non-observant and in the same sentence adds that the father "also ran away from his father's house in his youth because of rebellion against his father" so that "presumably (lefi ha-da'at) he could not properly know a matter such as this." Iggerot Mosheh further takes note of the fact that a female cousin declared that her father, a brother of the gentleman's father, challenged her cousin's claim to priestly descent declaring, "How is that possible that you are a kohen since my father, who is your father's brother, is not a kohen?" Without further analysis of the grounds for his ruling, Iggerot Mosheh proceeds to declare that since the gentleman's priestly identity was established solely on the basis of the declaration of his father "who has no credibility" with regard to that matter, the son is not obliged to divorce his wife. The discussion does not reveal whether that conclusion is based solely upon the father's lack of religious observance, upon the father's unreliable recollection due to the particular circumstances of his relationship with his family, upon the cousin's contradictory evidence or upon a combination of those considerations.
Iggerot Mosheh's ruling was understood as based upon the confluence of those considerations in a decision of a Jerusalem bet din established for purposes of ruling on matters of personal status. The decision of that bet din, comprised of the respected Sephardic authority, the late R. Eliyahu Abba Sha'ul, R. Abraham Dov Levine and Rabbi Eliyahu Shlesinger is published in Piskei Din me-Bet ha-Din le-Dinei Mammonot u-Birur Yahadut shel ha-Rabbanut ha-Rashit le-Yerushalayim, vol. I (5755), part 2, pp. 43-54.
1. Credibility of a Parent
It is entirely likely that, were the matter to hinge entirely upon the father's credibility, Rabbi Feinstein would have maintained that the father's lack of observance would be sufficient, in and of itself, to dismiss his testimony. In doing so Rabbi Feinstein would simply have been relying upon his own opinion as announced in Iggerot Mosheh, Even ha-Ezer, I, no. 82, anaf 11 and reiterated in Even ha-Ezer, IV, no. 32, anaf 7, to the effect that even a tinok ha-nishbah bein ha-akum, i.e., a child held in captivity among the pagans, has no credibility. That understanding of Rabbi Feinstein's position is bolstered, but not unequivocally confirmed, by his discussion in the second of those responsa, Even ha-Ezer, IV, no. 39. Surprisingly, the Jerusalem bet din fails to make any reference to the latter responsum.
The latter responsum, written in 5738, addresses the status of a newly observant man married to a non-Jewish woman with whom he had a child. The woman in question was apparently eligible for conversion as a righteous proselyte but would have been forbidden to marry a kohen. The gentleman's grandfather immigrated to this country from behind the Iron Curtain in 1923. The gentleman in question presumed himself to be a kohen solely on the basis of information imparted to him by his father.
The family reportedly had "no knowledge whatsoever of Torah or Judaism." Since the father "knew nothing" and it is clear that the grandfather made no attempt whatsoever to educate his child "even in some matters" of a Jewish nature, Iggerot Mosheh deduces that the grandfather was both a Communist and an atheist and was already a "thoroughly evil" person (rasha gamur) when he arrived in this country. Accordingly, concludes Iggerot Mosheh, the grandfather had no credibility to claim priestly descent. That statement, standing alone, would certainly indicate that the grandfather's lack of observance, or his atheism, was dispositive with regard to his non-credibility.
Iggerot Mosheh, however, adds a number of additional comments. The progenitor's testimony is not to be accepted, asserts Iggerot Mosheh, "particularly since [the grandson] did not hear this from his grandfather who perhaps may have at least studied in a ḥeder before the Communist conquest even though there were already many irreligious people (ḥofshim) in the cities of the Ukraine in the fourth and fifth year of this century … nevertheless, they certainly knew a little even though they had no credibility." The reader can only register puzzlement with regard to the thrust of those comments: If such individuals lack credibility what difference can be effected by their knowledge of Jewish practices or by the grandfather's attendance at a ḥeder? The statement seems to reflect equivocation between a statutory lack of credibility and lack of credibility due to sheer ignorance.
Moreover, Iggerot Mosheh places weight upon the fact that the couple had already established a non-halakhic marital relationship which, he maintains, should not be disturbed on the basis of the available information. Also incorporated in that statement is Iggerot Mosheh's sensitivity to the fact that if the gentleman's status as a kohen is confirmed and he is informed that marriage to this woman subsequent to her conversion is forbidden "it is certain that one must be concerned" that, in all likelihood he will return to his prior non-observant lifestyle. At the same time, Iggerot Mosheh expresses a strong inclination, but not a certainty, that such a person may be permitted to marry a convert or a divorcée even in the absence of those factors.
In his first responsum Iggerot Mosheh dismisses the statement of the father, not because he was a heretic, but because he was a Sabbathdesecrator. The principle formulated by the Gemara, Eruvin 69b, is that public desecration of the Sabbath is tantamount to heresy. That principle is predicated upon the premise that open and notorious desecration of the Sabbath is evidence that the transgressor denies that God created the universe over a period of six days and rested on the seventh. That talmudic presumption went unchallenged until the mid-nineteenth century. R. Jacob Ettlinger, Teshuvot Binyan Ẓion ha-Hadashot, no. 23, reports a socioreligious phenomenon, novel in nineteenth-century Germany but all too familiar in twentieth-century America, viz., the existence of countless numbers of Jews who offered Sabbath prayers and recited kiddush each Sabbath eve but then proceeded to desecrate the Sabbath by engaging in all manner of forbidden activity. Is it logical, queries Binyan Ẓion, for a person who denies creation to devoutly recite "And the heaven and earth and all their hosts were complete. And on the seventh day God completed the world which He made and He rested on the seventh day…." (Genesis 2:1-2). The notion of a believing Sabbath-desecrator might have been an oxymoron in a bygone age but in the modern world, argues Binyan Ẓion, it is a new reality. In the modern age, whether because of financial duress or other factors, that phenomenon is all too real. Others, who are raised in irreligious homes, know no better and have the status of "a child who was held in captivity among pagans." Accordingly, in light of the changed realia, rules Binyan Ẓion, the talmudic presumption of heresy does not attach itself to such persons.
Iggerot Mosheh, Oraḥ Hayyim, I, no. 33 reaches the same conclusion but on somewhat different grounds. Iggerot Mosheh queries why a person who violates the Sabbath in private should be viewed less severely than one who desecrates the Sabbath in public. In private, he submits, it may be assumed that the trespasser acts out of weakness and desire rather than because of disbelief. When the transgression is performed in public onlookers observe an act of heresy whereas the individual's motives and intent are concealed from them. In our day, contends Iggerot Mosheh, since "it is known that the majority of Sabbath-violators [act] because of desire for lucre" onlookers do not perceive such acts to be heretical in nature. Hence there is no longer a distinction between Sabbath desecration, in private and in public. R. David Zevi Hoffmann, Melamed le-Ho'il, Oraḥ Hayyim, no. 28, reasons simply that, in an age of rampant Sabbath desecration, people have become desensitized to the severity of the transgression. Since they perceive no need to conceal their actions, argues Melamed le-Ho'il, public desecration of the Sabbath, in our day, is no more onerous than private transgression in times gone by.
Although disputed by others,1See, for example, R. Chaim Eleazar Shapiro, Teshuvot Minḥat Elazar, I, no. 74 and II, no. 23. the basic position, albeit sometimes formulated on the basis of different halakhic nuances, has been espoused by a long list of rabbinic authorities.2See, for example, R. Shalom Mordecai Schwadron, Teshuvot Maharsham, I, no. 121; R. David Zevi Hoffmann, Melamed le-Ho’il, Oraḥ Ḥayyim, no. 29; and R. Joseph Eliyahu Henkin, Peirushei Ivra, chap. 5, sec. 4. Even those who disagree concede that a person who grows up among non-observant Jews has the status of a "tinok ha-nishbah bein ha-akum," i.e., "a child held in captivity among the pagans" who is not to be treated as a heretic since he never knew better. In effect, invincible ignorance is a shield against the halakhic sanctions and disqualifications suffered by a heretic with the result that a person who was raised in a non-observant environment and denied a meaningful Jewish education is to be regarded as having the status of "a child held in captivity."
Iggerot Mosheh, Even ha-Ezer, I, no. 82, anaf 11 and IV, no. 39, maintains, however, that, although such individuals suffer no other sanction, they are disqualified from serving as witnesses, not because of inherent "wickedness," but for the simple reason that such persons have no compelling reason to be truthful. The testimony of a believing Jew is accepted because he recognizes perjury to be a sin. A person who has no knowledge of the binding nature of the Sinaitic revelation has no such constraint; hence his testimony can be given no credence.3See also R. Moshe Feinstein, Iggerot Mosheh, Yoreh De’ah, II, no. 43 and Even ha-Ezer, IV, no. 37, anaf 7. Cf., however, R. Samuel Walkin, Teshuvot Zekan Aharon, I, no. 74, who asserts that people are truthful by nature in situations in which they have nothing to gain from a falsehood. It would follow that a person having knowledge of the prohibition against false testimony, but who professes no commitment to the observance of any of the commandments, would, according to Iggerot Mosheh, be similarly disqualified as a witness since he is under no imperative to be truthful. R. Yehudah Leib Diskin, Teshuvot Maharil Diskin (Jerusalem, 5691), p. 108, sec. 5, seems to adopt a similar view. That is also clearly the opinion of Teshuvot Maharshakh, III, no. 15, who comments with regard to those in the category of a tinok ha-nishbah: "It is not proper to accept them as witnesses for after all they transgress many commandments…. [Is] it conceivable that [such a person] be accepted for testimony since he does not act in the manner of proper Jews?"
A contradictory position was espoused by the Israeli Rabbinical Court of Appeals in 5708 in an opinion issued by R. Ben-Zion Uziel, R. Isaac ha-Levi Herzog and R. Meshullem Roth published in Osef Piskei Din Rabbaniyim (Jerusalem, 5710), pp. 137-138, a slim volume that served as a precursor to the Piskei Din Rabbaniyim. The case involved a woman divorced from a kohen who claimed that she and her former, but now deceased, husband had remarried and hence she was entitled to the rights and prerogatives of a widow. Since marriage between a kohen and a divorcée is forbidden the marriage was solemnized without benefit of clergy but in the presence of witnesses. At issue was a challenge to the validity of the marriage by virtue of the fact that the witnesses were non-observant and, in the case of one witness, there was testimony that he had been seen smoking in public on Shabbat. The bet din refused, albeit somewhat tentatively, to disqualify the witnesses arguing that "in a time and a place in which non-observance has multiplied and spread … " transgressions of this nature do not undermine the credibility of witnesses. In the situation of such great 'hiding of the face' [the witnesses] are virtually inadvertent transgressors." Disqualification of transgressors or witnesses is because of fear of false testimony "and accordingly the credibility of the witness must be assessed in accordance with the circumstances of the time and the place" (ibid., p. 137). The bet din was prepared to accept such testimony, not only in instances of invincible ignorance, but even in situations in which the improper conduct might be attributed to sociological factors. Quite clearly, the bet din, unlike Iggerot Mosheh, assumed that witnesses abjure perjury not solely because of a divine mandate to do so but because of the innate, natural human condition. According to that view a non-observant father would have credibility to testify with regard to his son's status as a kohen.
Indeed, it would be entirely consistent even with Iggerot Mosheh's position to assert that, although individuals who do not accept the veracity of revelation at Sinai have no credibility, nevertheless, those who accept the basic phenomenon but, due to ignorance of its provisions, economic pressures, unrestrained desire or convenience are largely nonobservant, retain credibility concerning matters with regard to which they are scrupulous. The individual described in Iggerot Mosheh's first responsum was totally non-observant; the individual described in the second responsum is depicted as an atheist. Neither responsum addresses the phenomenon of the somewhat knowledgeable, selectively-observant, professing Jew.
Moreover, in addressing an entirely different issue, Iggerot Mosheh himself asserts that, at times, even an avowed atheist has credibility with regards to matters of religious law. Rabbi Feinstein, Iggerot Moshe, Yoreh De'ah, I, no. 54, reports that on a visit to Moscow in 1936 he was consulted with regard to an agonizing question. Circumstances forced many elderly and infirm individuals to live with their children. Those children, living under the influence of the Communist state, did not observe kashrut and "the majority denied God and His Torah." Nevertheless, they accommodated their aged parents by purchasing kosher food and providing kosher utensils on their behalf. The issue presented to Rabbi Feinstein was the credibility of those children with regard to kashrut.
Iggerot Mosheh responded that a parent might indeed rely upon his child's guarantees of kashrut provided that the parent was firmly convinced that the "daughter or daughter-in-law" would not cause the parent to transgress. Such conviction would arise, asserts Iggerot Mosheh, if the parent "tested" the homemaker on a number of occasions and ascertained that no attempt was made to fool the parent because the child "did not want to cause him pain or because it was the nature [of the child] not to cause others to act contrary to their will."
In explaining his ruling, Iggerot Mosheh argues that rules governing disqualification of witnesses pertain only to acceptance of testimony with regard to individuals whose nature is unknown. Statements of such individuals are accepted on the basis of "belief" in the truth of their testimony rather than on the basis of knowledge. Citing an anecdote recorded in Ketubot 85a, Iggerot Mosheh asserts that, in a situation in which a person has personal knowledge of another individual's unchallengeable probity, his acceptance of the latter's statement is a matter of "knowledge" rather than "belief" and hence he may act on such statements even if that person is not qualified to serve as a witness.4See also Iggerot Mosheh, Yoreh De’ah, II, no. 43. The incident recorded in Ketubot 85a may, however, reflect a much more circumscribed rule, viz., that a dayyan dare not decide a financial matter on the basis of objectively admissible evidence when he is convinced of, or even suspects, the unreliability of the evidence presented. In instances in which exoneration is contingent upon an oath and the dayyan suspects that the defendant may swear falsely he must assign the oath to the plaintiff. See Rambam, Hilkhot Sanhedrin 24:1 and Kesef Mishneh, ad locum. It is in that context that the Gemara reports that Rava acted upon the declaration of the daughter of Rav Ḥisda whose testimony could not be formally accepted. Cf., also, the opinion of Rif cited by Kesef Mishneh, loc. cit., who states that this principle is not fully applicable in our day.
It would then follow that, even according to Iggerot Mosheh, if the son is absolutely certain that his father, despite the fact that the latter is a Sabbath-violator or even an atheist, would not lie with regard to matters of religious observance, the son whose priestly genealogy has been disclosed by his father, is deemed to "know" that fact to be true and must comport himself accordingly.
The Jerusalem bet din, in its decision, failed to address another issue affecting disqualification of witnesses. Bet Yosef, Even ha-Ezer 42, s.v. maz'ati, describes an incident involving a person who entered into a marriage in the presence of witnesses who were known to have committed serious transgressions. One authority, a certain R. Chaim he-Arukh, declared the marriage to be null and void. The Sages of Tilutula challenged the ruling and placed R. Chaim he-Arukh under a ban until such time as he would rescind that ruling. Their position was that a person cannot be disqualified unless testimony establishing his wrongdoing is heard in his presence by a properly constituted bet din. Since that had not occurred they maintained that the marriage was valid.5See Teshuvot ha-Ralbaḥ, no. 136 and Teshuvot Noda bi-Yehudah, Even ha-Ezer, Mahadurah Kamma, no. 72, who maintain that testimony to disqualify an individual from serving as a witness may be heard only in his presence. Cf., the contradictory view of Teshuvot ha-Rivash, no. 266. See also sources cited in Koveẓ ha-Poskim, V (Brooklyn, 5738), 105-111, 115 and 147-148.
A similar position is espoused by Teshuvot ha-Baḥ, no. 102; Urim ve-Tumim, Hoshen Misphat, Urim 28:3 and Tumim 87:27; Teshuvot Hatam Sofer, Yoreh De'ah, no. 11; Teshuvot Hikrei Lev, Yoreh De'ah, no. 1; Netivot ha-Mishpat, Bi'urim 46:22, cited by Pitḥei Teshuvah, Hoshen Mishpat 28:1; Teshuvot Pnei Aryeh, no. 28, cited by Pitḥei Teshuvah, Even ha-Ezer 42:18; and R. Samuel Walkin, Teshuvot Zekan Aharon, I, no. 74.6Cf., however, Teshuvot Ḥavvot Ya’ir, addenda and Keẓot ha-Ḥoshen 28:8 who adopt an opposing view. See also R. Chaim Halberstam, Teshuvot Divrei Ḥayyim, Likkutim ve-Hashmatot, no. 33 and R. Meir Arak, Teshuvot Imrei Yosher, II, no. 36.
R. Moshe Schick, Maharam Shik al Taryag Miẓvot, no. 37, sec. 7, asserts that common knowledge regarding an evildoer’s transgressions establishes a ḥazakah and hence no bet din proceedings are required to disqualify him as a witness. See also Iggerot Mosheh, Yoreh De’ah, I, no. 160; Even ha-Ezer, I, no. 135; and Even ha-Ezer, IV, no. 11, sec. 3, who makes the same point with regard to the disqualification of Conservative clergy. See also Iggerot Mosheh, Even ha-Ezer, no. 85. Cf., however, Teshuvot Pnei Aryeh, no. 28, who asserts that common knowledge regarding transgression is not sufficient to disqualify a person from serving as a witness.
2. Personal Credibility—Shavya Anafsheih
The Jerusalem Bet Din le-Birur Yahadut addressed a case similar to that brought to the attention of Iggerot Mosheh and ruled in a different manner in at least one salient aspect. The case involved a newly-observant Russian couple. The wife had previously been married to a non-Jew and hence was disqualified from marrying a kohen. The husband had been informed of his family's priestly status by his non-observant father.
The general rule is that a person has standing, even when contradicted by trustworthy witnesses, to declare that certain matters are prohibited to him. Thus a person may not eat a foodstuff he has declared to be non-kosher even though others are fully entitled to rely upon the contradicting testimony of two witnesses. The resultant principle is known as "Shavya anafsheih ḥatikha de-issura—He has established upon himself a prohibited piece." Similarly, a person has credibility to declare himself a mamzer and consequently forbidden to marry a Jewess of legitimate birth. Although such credibility is generally limited to oneself, nevertheless, as recorded by Rambam, Hilkhot Issurei Bi'ah 15:15-16, a father is granted specific authority to declare his son to be a mamzer, most particularly when he testifies directly with regard to his son's status. That authority is derived from the biblical verse "yakir— he shall recognize" (Deuteronomy 21:17). If the father testifies that he himself is a mamzer and, by implication, that status is shared by his son as well, some authorities maintain that the father's testimony creates only a doubtful status with regard to the son.
The Jerusalem bet din raised an intriguing issue in questioning whether the rule of "yakir" is limited to disqualification as a mamzer or whether it applies also to acknowledging a son as a kohen who is then bound by attendant marital restrictions. A person certainly has credibility to declare himself a kohen for purposes of being forbidden to marry a divorcée. The question is whether or not he can generate the selfsame prohibition with regard to his son. If yes, argued the bet din, the father's lack of observance is of no consequence. A father is disqualified from serving as a witness in any matter affecting his son. Nevertheless, despite the paternal-filial relationship that exists between them, the rule of "yakir" endows the father with credibility despite such ostensive disqualification; similarly, that principle establishes credibility even in face of other disqualifications as a witness.
Moreover, argued the bet din, the son who had declared himself a kohen, albeit on the strength of his father's declaration, has created his own shavya anafsheih quite apart from the implications flowing from the father's declaration.7That position was reiterated by Rabbi Levine in a later opinion published in Piskei Din me-Bet ha-Din le-Dinei Mammonot u-Birur Yahadut shel ha-Rabbanut ha-Rashit le-Yerushalayim, vol. III (5755), part 2, pp. 274-276 and 280. Teshuvot ha-Radvaz, I, no. 362, advances the thesis that shavya anafsheih is established not only on the basis of alleged personal knowledge but also on the basis of the acceptance of statements of others. That position is also reflected in the comments of Tosafot, Kiddushin 66a, s.v. Rava, as well as the ruling of Teshuvot Hatam Sofer, Even ha-Ezer, I, no. 78, cited by Pitḥei Teshuvah, Even ha-Ezer 115:25.8These sources seem to have been unknown to R. Eliyahu Schlesinger, Piskei Din, ibid., p. 279.
Iggerot Mosheh dismissed the issue of shavya anafsheih in the first case brought to his attention because the son's presumption of his status as a kohen was predicated entirely upon the statements of his non-observant father. The Jerusalem bet din chose to interpret Iggerot Mosheh's comment regarding the father's lack of observance, not as a reference to that factor per se, but in the context of the total fact pattern, i.e., because of the father's non-observance he had no knowledge of what priesthood connotes and may therefore have been engaged in idle speculation. Accordingly, the bet din declared that a different result would obtain in a situation in which a non-observant father explicitly presents the information in the context of transmitting a family tradition and the report is accepted by the son as credible. That interpretation would appear to be compelled unless Iggerot Mosheh is to be understood as rejecting the notion that shavya anafsheih may arise from reliance upon statements of others.
However, the Jerusalem bet din acknowledged that Iggerot Mosheh may have dismissed the issue of shavya anafsheih for a different reason. The bet din presumed that the principle of shavya anefsheih ḥatikha deissura is limited to actual and intended declaration of a prohibition or issura rather than to the establishment of facts that give rise to a prohibition. Accordingly, in the case at hand, the bet din ruled that shavya anafsheih would be applicable only if the person making such representations was cognizant of the fact that, as a result of declaring himself to be a kohen, he would be forbidden to marry a divorcée. That view is consistent with the position of Teshuvot Shev Ya'akov, cited by Kezot ha-Hoshen 80:2, who maintains that shavya anafsheih is a form of vow and hence is applicable only if the person understands the consequences of his statement; otherwise, it is a vow undertaken in error and therefore of no effect.9See also Sha’ar ha-Melekh, Hilkhot Ishut 9:15; R. Ezekiel Landau, Teshuvot Noda Bi-Yehudah, Even ha-Ezer, Tinyana, no. 23, s.v. u-mah she-raẓah le-ḥadesh; R. Joseph Saul Nathanson, Teshuvot Sho’el u-Meshiv, vol. 1, no. 1; Amudei Esh, no. 4, klal 2; R. Abraham I. Ableman, Teshuvot Zikhron Yehonatan, p. 165a; R. Chaim Chizkiyahu Medini, Sedei Ḥemed, ma’arekhet ha-shin, klal 2; idem., Teshuvot Or Li, no. 129, sec. 9 and R. Shalom Mordecai Schwadron, Da’at Torah, Yoreh De’ah 1:69. Kezot ha-Hoshen himself rejects that view and advances the thesis that shavya anefsheih simply reflects the credibility that the Torah extends to a person's statements insofar as they affect himself. Accordingly, Kezot ha-Hoshen regards ignorance of the implications of such a statement to be inconsequential. Hatam Sofer, in his previously-cited responsum, adopts a position compatible with that of Shev Ya'akov in ruling that a husband who declares that his wife has committed adultery may not continue the marital relationship even though, when making the statement, the husband was unaware of the halakhic rule forbidding an adulterous wife to her husband.10The Jerusalem bet din seems to cite Teshuvot Ḥatam Sofer, Even ha-Ezer, I, no. 78, s.v. hinei, as adopting the position that shavya anafsheih is operative only if the individual making the pronouncement is aware of its halakhic implications. In point of fact, Ḥatam Sofer asserts something rather different. Ḥatam Sofer declares that a kohen who announced that he believes his wife’s statement that she was raped may recant upon learning that, if such were the case, she would be prohibited to him. Ḥatam Sofer’s rationale is not that failure to appreciate the consequence defeats shavya anafsheih but that, once the kohen becomes aware of the prohibition against continued marital relations, he realizes that there may have been a motive for his wife to fabricate the account. The fact that Ḥatam Sofer found it necessary to advance that explanation tends to indicate that he rejects the view of Shev Ya’akov. Cf., Teshuvot Ḥatam Sofer, Yoreh De’ah, no. 185, in which Ḥatam Sofer cites both theories regarding the basis of shavya anafsheih. See also Teshuvot Ḥatam Sofer, Even ha-Ezer, I, no. 28, in which Ḥatam Sofer describes shavya anafsheih either as a vow or as a reflection of the principle that a witness does not have capacity to recant.
3. Hazakah
Another factor that must be considered with regard to the question of priestly identity is the possibility that investigation would disclose the existence of a ḥazakah with regard to the family's priestly status. In this context, the notion of ḥazakah is nothing other than common knowledge within a community of the status of an individual or of his forebears. Thus, although the father may never have attended synagogue and hence never have been accorded Torah honors, it may be the case that there are records in the archives of the European community from which the family hailed indicating that the grandfather was a kohen. Discovery of such information subsequent to marriage to a woman forbidden to a kohen would be disastrous. Although the matter has not received attention in the responsa literature, a gravestone indicating that the grandfather was a kohen might be deemed evidence of "common knowledge" of such status within the community.11R. Joseph B. Soloveitchik maintained that a gravestone symbol is sufficient in and of itself to establish priestly identity. See “Surrendering to the Almighty,” Light, 17 Kislev 5736, p. 15. A transcript of the lecture upon which that article is based is available at http://www.mat-jewish.org/rav/Talmud_torah.txt. That consideration becomes even more compelling if, as often was the case in European communities, gravestone inscriptions were supervised by the local ḥevra kaddisha (burial society).12For an example of control over gravestone inscriptions see the statute of the ḥevra kaddisha of Eisenstadt cited by R. Joseph Schwartz in a note to Hadrat Kodesh: Ẓion le-Nefesh Ḥayah, sec. 9, appended to Zikaron le-Mosheh (Arda’a, 5698).
Even at present, when cemeteries are owned by the ḥevra kaddisha, it exercises control over gravestone inscriptions as evidenced by several instances of litigation in recent years. In a recent case, an Israeli ḥevra kaddisha sought to ban the use of a civil date. See Fredrikah Shavit v. Ḥevra Kaddisha Gaḥasha Rishon le-Ẓion, Piskei Din shel Bet ha-Mishpat ha-Elyon, vol. 53, part 3 (1977), pp. 600-663. Similar issues were earlier adjudicated by the Israeli Supreme Court in Gidon v. Ḥevra Kaddisha Gaḥasha, Piskei Din shel Bet ha-Mishpat ha-Elyon, vol. 27, part 1 (1973), pp. 10-25 and Ḥevra Kaddisha Gaḥasha “Kehillot Yerushalayim” v. Lionel Aryeh Kestenbaum, Piskei Din shel Bet ha-Mishpat ha-Elyon, vol. 46, part 2 (1992), pp. 464-538.
More recently a London ḥevra kaddisha forbade a description of the deceased as a socialist and was sued in a British court. See The Jewish Chronicle, December 23, 2005, p. 3. That matter has apparently become moot since, upon consultation with the London bet din, the ḥevra kaddisha relented and permitted the inscription. See The Jewish Chronicle, February 17, 2006, p. 34.
Whether the existence of a ketubah indicating that the father or grandfather was a kohen is evidence of priestly status is a matter of controversy among early authorities. Rambam, Hilkhot Issurei Bi'ah 20:9, regards such evidence as sufficient to create at least doubtful status and to entitle such an individual to partake of priestly offerings obliged by rabbinic, and distinct from biblical, decree. Re'ah, cited by Ran, Ketubot 24b, and Ritva, ad locum, express doubt with regard to whether any evidentiary weight is to be assigned to such instruments. Shakh, Hoshen Mishpat 49:15, explains that the underlying issue is whether the attesting witnesses testify only to the substantive provisions recorded in the document or whether they testify to ancillary matters contained therein as well.
The bet din also opined that the family name "Cohen" is sufficient to establish a presumption of priestly status.13That position is reiterated by the bet din in Piskei Din, ibid., vol. 3, part 2, p. 290. The bet din reasoned that, since the "vast majority" of individuals bearing the name "Cohen" are kohanim, ascription of that name to the family generates a ḥazakah or presumptive evidence of priestly status. In a footnote the bet din takes cognizance of the opinion of R. Israel Meir Lau, Yaḥel Yisra'el, I, no. 30, who maintains that, absent a family tradition to that effect or a ḥazakah established by individual members of the family, the surname alone is not dispositive. His primary consideration is that, in some European communities, marriages were not registered in a timely fashion with the result that, not infrequently, children were registered as bearing the mother's family name.
In a response to an inquiry by the bet din in a different case published by the Jerusalem bet din in Piskei Din, ibid., III, part 2, p. 291, R. Samuel ha-Levi Woszner declares that the family name is of no consequence in determining priestly status.
Marriage of a Kohen and the Daughter of a Non-Jew
In a decision issued on 19 Iyar 5766, the Rabbinical District Court of Rehovot confirmed its earlier ruling declaring an applicant for a marriage license to be eligible to contract a marriage as a Jewess but denied her permission to marry a kohen on the grounds that she was the issue of a union between a Jewish woman and a non-Jewish man.14Index no. 321328494-15-1.
The decision, on the surface, was routine and unexceptionable. Denial of the application for a marriage license was based upon an explicit provision of Halakhah recorded twice in Shulḥan Arukh, Even ha-Ezer 4:5 and 4:19 and implicit in the ruling of Shulḥan Arukh, Even ha-Ezer 7:17. The Rehovot bet din composed a detailed analysis of the basis of that ruling only because the case was remanded to them on appeal for further consideration by the Supreme Rabbinical Court of Appeals.
The Gemara, Yevamot 45a, posits a controversy among the Amora'im regarding the status of the progeny of a union of a non-Jewish man and a Jewish woman. One opinion is that the child born of such a liaison is a mamzer while a second opinion maintains that the child is legitimate but, if a female, is forbidden to marry a priest. The Gemara, Yevamot 45b, concludes, "The law is that if a non-Jew or a slave consorts with a daughter of Israel the child is legitimate." Ostensibly, that definitive ruling represents an adjudication of the earlier controversy and the term "kosher" or "legitimate" is used as the antonym of "mamzer" or "bastard" with the implication that the child is legitimate but nevertheless forbidden to a kohen as had earlier been stated. Rosh understands the Gemara in that manner and rules that the daughter is certainly forbidden to a kohen.
Rif, however, states that some authorities rule that the daughter is not only legitimate but permitted to a kohen as well. Presumably, the rationale underlying that position is that, since there is no halakhically recognized paternal-filial relationship between the biological father and the child, there is no basis for disqualifying her from marrying a kohen. The term kosher is understood by the authorities cited by Rif as "legitimate" in the fullest sense of the term and the dictum is understood by him, not as adjudication between two conflicting views, but as the expression of a third, previously unexpressed position, which is pronounced to be normative.
Ramban, Yevamot 45a, similarly asserts that the Gemara records three distinct views with regard to the status of such progeny and, although the Gemara clearly rules that the child is not a mamzer, there is no definitive ruling with regard to whether a daughter of such a liaison may marry a kohen. Since the issue remains a matter of doubt, Ramban rules that such a girl may not enter into marriage with a kohen but, post factum, if such a marriage has been celebrated, they cannot be compelled to divorce.15Rambam’s position is a matter of some dispute. Rambam, Hilkhot Issurei Bi’ah 15:3, rules that the child is legitimate but makes no reference to the status of a daughter vis-à-vis a kohen. Accordingly, Maggid Mishneh, ad locum, presumes that Rambam regards the daughter to be permitted to a kohen. However, Mishneh le-Melekh, ad locum, advances evidence indicating that Rambam maintains that she is forbidden to a kohen. Ramban ascribes that view to Rif as well. The view that Rif regards the matter as remaining in doubt is supported by the published text of Rif.16Cf., however, Nemukei Yosef, ad locum, and R. Yechiel Ya’akov Weinberg, Teshuvot Seridei Esh (Jerusalem, 5726), III, no. 54, reprinted in Teshuvot Seridei Esh (Jerusalem, 5763), I, no. 72. For a comprehensive survey of the positions of early-day authorities regarding this issue see idem, Teshuvot Seridei Esh (Jerusalem, 5763), I, no. 71.
As previously noted, the prohibition against marriage of such a woman to a kohen is explicitly codified by Shulḥan Arukh in two places, Even ha-Ezer 4:5 and Even ha-Ezer 4:19. Both Helkat Meḥokek, Even ha-Ezer 4:3 and 7:26, and Bet Shmu'el, Even ha-Ezer 4:2 and 7:39, confirm Ramban's view in ruling that the daughter of such a liaison is forbidden to marry a kohen but, if already married, the couple need not be compelled to divorce.17Shulḥan Arukh rules simply that such a marriage is forbidden but does not expressly address the post factum status of such a couple. R. Chaim Joseph David Azulai, Birkei Yosef, Even ha-Ezer 4:19, regards that omission as indicating that Shulḥan Arukh maintains that even after the fact they are forbidden to live together as man and wife. See also Dibberot Eliyahu, IV, no. 31. Cf., however, R. Shalom Mashash, Shemesh u-Magen, III, Even ha-Ezer, no. 58. That ruling is explicitly accepted by R. Moshe Feinstein, Iggerot Mosheh, Even ha-Ezer, I, no. 6. R. Ovadiah Yosef, Teshuvot Yabi'a Omer, VII, Even ha-Ezer, no. 60, is in fundamental agreement with that position but rules that, since Ramban regards the status of such a woman to be doubtful, in the presence of a second "doubt," e.g., the status of the prospective groom as a kohen is itself doubtful, the marriage may be permitted on the basis of sefek sefeika or "double doubt."
The case heard by the bet din of Rehovot involved one additional consideration. Before applying for a marriage license the couple had been living together for a period of approximately one-and-a-half years and had announced that, if a license was denied, they would continue to do so without benefit of marriage. The issue of a kohen already living with the daughter of a Jewish mother and a non-Jewish father pursuant to civil marriage has been analyzed by R. Moshe Feinstein in his earlier-cited responsum18Iggerot Mosheh forbids marriage even in such circumstances. A similar decision is published in Piskei Din shel ha-Rabbanut ha-Rashit le-Yerushalayim, III (5755), part 2, pp. 293-297. and by the late Sephardic Chief Rabbi of Jerusalem, R. Shalom Mashash, Shemesh u-Magen, III, Even ha-Ezer, nos. 55 and 58.
Ramban's position that the status of such a woman is unresolved led him to rule that she may not marry a kohen but, if married, the couple cannot be compelled to divorce. That ruling seems somewhat contradictory. The couple is forbidden to marry because of the possibility of transgression. The selfsame possibility of transgression persists within an already contracted marital union. If so, would not logical consistency lead to the conclusion that, if married, they must divorce? A number of latter-day authorities have endeavored to resolve that perplexity.
One possible solution is that the prohibition is rabbinic in nature and the edict was not designed to apply post factum. However, the most cogent resolution is that advanced by Sha'ar ha-Melekh, Hilkhot Issurei Bi'ah 15:3. A divorce executed under duress by a bet din is valid only if there are halakhic grounds for coercion. However, asserts Sha'ar ha-Melekh, if the transgression is doubtful, it follows that the grounds for coercion are also doubtful. If so, argues Sha'ar ha-Melekh, a get cannot be compelled in cases of doubt born of halakhic controversy because its validity would perforce be a matter of doubt with the result that the woman could not be permitted to remarry on the strength of such a get. Nevertheless, as a matter of religious law, the parties themselves are forbidden to continue to live together as man and wife. Iggerot Mosheh accepts Sha'ar ha-Melekh's explanation in ruling that a religious ceremony may not be performed for such a couple despite the fact that they have been living together in an ongoing relationship pursuant to civil marriage.19Cf., however, R. Ovadiah Yosef, Teshuvot Yabi’a Omer, VII, Even ha-Ezer, no. 9, sec. 6, who cites an oral report regarding Sephardic authorities who permitted performance of a marriage pursuant to a civil marriage in France. They considered the matter to be post factum because France, at the time, did not allow civil divorce and remarriage. Sanction of a marriage under such circumstances is certainly not consistent with the position of Sha’ar ha-Melekh. Sha'ar ha-Melekh's resolution of the problem is particularly compelling if it is accepted that the prohibition is biblical in nature.
Rabbi Mashash, on the other hand, in his previously cited responsum, was quite willing to permit marriage of such couples not only in situations in which a civil marriage had already taken place20See also Rabbi Mashash’s position in another case published in Piskei Din shel ha-Rabbanut ha-Rashit le-Yerushalayim, vol. VI (5759), part 2, p. 183. but also in situations in which the parties had already been sharing an abode.21R. Joshua Ehrenberg, Teshuvot Dvar Yehoshu’a, III, Even ha-Ezer, no. 8, permits such a marriage even in a situation in which the couple is engaged on the basis of the consideration that no other man may be willing to marry the woman. He bases his conclusion upon two considerations:
1) A Jew suspected of consorting with a non-Jewish woman may not marry her subsequent to her conversion. However, if they have already married he is not obligated to execute a get. There is significant controversy with regard to whether, in such a situation, civil marriage constitutes a post factum condition. Those opinions have been analyzed in detail by this writer in Contemporary Halakhic Problems, I (New York, 1977), 286-290. Rabbi Mashash chooses to cite only the permissive opinions and entirely ignores the opposing position. He then summarily equates the case of a union between a kohen and the daughter of a non-Jew with that of a Jew suspected of having had a sexual relationship with a non-Jewish woman.
Apart from the controversy with regard to the effect of civil marriage in the latter situation, according to Sha'ar ha-Melekh's explanation of the rationale underlying that provision in the case of a kohen, the two situations are obviously entirely dissimilar.
Rashi, Yevamot 24b, explains that the prohibition against a Jew marrying a convert with whom he is suspected of having had a liaison was promulgated in order to safeguard the honor and reputation of the husband since marriage under such circumstances is likely to lend credence to rumors of previous immorality. Accordingly, some authorities conclude that the prohibition does not extend to situations in which the couple have been living together publicly since in such cases previous immoral conduct is an established verity.22See this writer’s Contemporary Halakhic Problems, I (New York, 1977), 286, note 42. Teshuvot ha-Rashba, I, no. 1,205, explains that, if the couple are suspected of having lived together previously, their marriage subsequent to conversion will lead to suspicion that the conversion itself was insincerely contrived for purposes of marriage. Accordingly, a number of authorities assert that, according to Rashba, if the couple have already established a permanent conjugal relationship, there can be no grounds for the suspicion that the conversion was insincerely entered into merely for the sake of marriage.23See ibid., p. 289. Quite obviously, according to these lines of reasoning, in the case of a converted paramour, civil marriage or a longstanding conjugal relationship is not equated with a valid marriage as creating a post factum situation but is regarded as rendering the prohibition entirely nugatory.
2) Rabbi Mashash asserts, again quite unequivocally, that in both instances the prohibition is rabbinic in nature and hence lenience is in order in matters of doubt. It is certainly the case that the prohibition against marrying a proselyte in the situation described is rabbinic in nature but it is far from clear that such is the case with regard to a kohen and the daughter of a non-Jewish father. Indeed, if the prohibition is merely rabbinic and if, as Ramban maintains, the permissibility of such a marriage is a matter of doubt, it is difficult to understand why the marriage is not permitted even ab initio. R. Moshe Feinstein, Iggerot Mosheh, Even ha-Ezer, I, no. 5, depicts the prohibition as based upon doubt with regard to a biblical transgression. Nevertheless, Teshuvot Rema mi-Panu, no. 124, Helkat Meḥokek, Even ha-Ezer 7:26, Teshuvot R. Akiva Eger, no. 91 and Bet Me'ir, Even ha-Ezer 4:5, regard the prohibition as rabbinic in nature.24The question is contingent upon whether the kal va-ḥomer formulated by the Gemara, Yevamot 45a, in establishing the prohibition is a compelling a fortiori argument or a mnemonic device associated with a rabbinic edict.
R. Shlomoh Amar, Shema Shlomoh, V, Even ha-Ezer, no. 8, endorses Rabbi Mashash's ruling and adds that, in a sexually promiscuous age such as ours, it is quite possible that the groom's mother may have engaged in sexual conduct that would serve to deprive any future progeny of the priesthood.
The bet din of Rehovot took note of the opinions of Rabbis Mashash and Amar but declined to accept them as authoritative. The matter was appealed to the Supreme Rabbinical Court of Appeals and, in a brief decision, the Court of Appeals simply cited the responsa of Rabbis Mashash and Amar, reversed the ruling of the rabbinical district court and "requested" the rabbinate of Rehovot to perform the marriage.25Index no. 321328494-12-1. One of the members of the panel hearing this case was R. Shlomoh Amar.
The halakhic authority of the Israeli Supreme Rabbinical Court of Appeals to reverse decisions of district courts is not at all clear. That issue has been discussed by this writer in Contemporary Halakhic Problems, IV (New York, 1995), 17-45. The theories offered in support of such authority are much more persuasive in matters of jurisprudence than in matters of religious law. The general rule "If a scholar has prohibited another scholar dare not permit" (Berakhot 63b, Avodah Zarah 77b, Hullin 44b and Niddah 20b) admits of exceptions in instances of clear error. It does, however, bar exercise of purely subjective discretion in choosing one set of precedents over another.
It is difficult to believe that any objective scholar would find Rabbi Mashash's reasoning absolutely compelling. It is impossible to fault the bet din of Rehovot for assaying greater weight to the responsa of Rabbis Feinstein and Yosef than to those of Rabbis Mashash and Amar. It is quite easy to conclude that the lower court's decision was overruled simply because Rabbi Amar chose to follow his own previously announced opinion.
Such a course of action might well be legitimate were Rabbi Amar able to allege a lack of cogency in the opposing view or to show that the weight of precedent contradicted the decision of the lower court. This he made no attempt to do. Mere preference for one set of precedents over another without a clear elucidation of doctrinal support is not the manner in which appellate review is carried out in the common law judicial system from which the Israeli system of rabbinic appellate review was adopted. Such a procedure strikes this writer as a misuse of appellate power.
Furthermore, there is some question with regard to whether the appellate jurisdiction of the Supreme Rabbinical Court extends to "non-adversarial" matters. In an unpublished decision issued in 5702, Index no. 1/46/701, the Supreme Rabbinical Court held that it had appellate authority in all matters. However, in a subsequent unpublished decision issued in 5716 the Supreme Rabbinical Court ruled that it had no authority to hear appeals in "non-adversarial" matters, i.e., in determining issues of Jewish religious law since such matters are not within the ambit of authority granted to the bet din by virtue of the applicable Israeli civil law. The issue before the court involved the conversion of a minor child by its Jewish father in face of the announced opposition of its non-Jewish mother. The district court declared that it was not acting by virtue of the powers vested in a bet din to adjudicate disputes but was simply announcing a matter of religious law. The Supreme Rabbinical Court ruled that such matters are not subject to appeal.26See Eliav Shochetman, Seder ha-Din (Civil Practice in Jewish Law) (Jerusalem, 5748), p. 450. The question of whether a daughter of a non-Jewish father is permitted to marry a kohen is similarly a non-adversarial issue of religious law.27For a comprehensive discussion of the issues involved in determining the ambit of the appellate authority of the Supreme Rabbinical Court see this writer’s Contemporary Halakhic Problems, IV (New York, 1995), 17-45.
Moreover, as cogently demonstrated by Iggerot Mosheh, even in circumstances in which the couple will continue to cohabit even without benefit of marriage, celebration of a wedding ceremony is tantamount to rabbinic license to commit an even graver transgression. According to many early-day authorities, cohabitation outside of marriage constitutes a rabbinic infraction. Rambam, Hilkhot Issurei Bi'ah 17:12, maintains that priestly conjugal prohibitions are biblically binding only within a marital relationship. Thus, according to Rambam, performance of a wedding ceremony transforms what would otherwise be a rabbinic infraction into a more serious biblical transgression.
It is, however, not inconceivable that the same result might have been achieved on the basis of other considerations. As pointed out by Rabbi Feinstein in his earlier-cited responsum, in Jewish law, cohabitation for purposes of marriage creates a marital relationship when such is the intention of the parties. Whether or not such intention is presumed in a relationship tantamount to common law marriage depends upon whether the presumption that couples do not engage in fornication when the option of a marital union is available is applicable in situations of the nature described. An analysis of that very complex issue is beyond the scope of the present discussion. Suffice it to say that a bet din, in appropriate circumstances, might reasonably have concluded that the existence of a valid halakhic marriage necessitating a get for its dissolution was at least a matter of doubt. Since, in the case of a kohen married to the daughter of a non-Jew, a get cannot be compelled, it should follow that the recalcitrant parties may not be prevented from regularizing their relationship by means of a formal marriage.
Sonograms and the Unborn Kohen
The verse "Speak unto the priests, the sons of Aaron and say unto them…." (Leviticus 21: 1) serves as a prefatory comment to the prohibition against priestly defilement through contact with a corpse. The Gemara, Yevamot 114a, takes note of the double expression "speak" and "say unto them" in declaring that Moses was instructed to transmit two prohibitions: 1) a commandment addressed to adult priests forbidding them to defile themselves; and 2) a directive commanding adults not to defile young priests who have not yet attained the age of halakhic majority. The latter prohibition is recorded in Shulḥan Arukh, Yoreh De'ah 373:1. Rema adds that the prohibition is limited to the performance of an overt act on the part of an adult causing defilement of the minor. As explained by Shakh, Yoreh De'ah 373:1, intervention to restrain a child from defiling himself is mandated only by virtue of a father's obligation with regard to ḥinnukh, i.e., "training," and hence is limited to the child's father and, moreover, becomes applicable only at an appropriate age. The opinion of Baḥ, Yoreh De'ah 373, to the effect that even an infant must be prevented from defiling himself is not accepted by other authorities. However, Magen Avraham, Oraḥ Hayyim 343:2, and Mishnah Berurah 343:3 emphasize that actively causing defilement is forbidden even in the case of a child completely lacking in reason.
R. Eliezer ben Judah of Worms, Sefer Rokeaḥ, no. 366, declares that the pregnant wife of a kohen may enter a building in which a corpse is present by virtue of application of the principle of sefek sefeika, i.e., "double doubt." There are two separate contingencies that would render defilement permissible, viz., perhaps the pregnant woman will miscarry because the fetus she is gestating is not viable and, even if the fetus is viable, perhaps it is a female. There is no prohibition against defiling either a non-viable fetus or a daughter of a kohen. However, Rokeaḥ certainly maintains that, in principle, it is forbidden to defile a fetus. Rokeaḥ's ruling is confirmed by Shakh, Yoreh De'ah 371:1.
Although Rokeaḥ's position is accepted as normative, there are reasons for stringency on the part of the wife of a kohen in refraining from coming into contact with a corpse. R. Chaim Chizkiyahu Medini, Sedei Hemed, ma'arekhet ha-samakh, sec. 71, cites a number of authorities who assert that, although it is permissible to rely upon a "double doubt," it is nevertheless a meritorious act of piety not to do so.
Rokeaḥ's construction of this sefek sefeika is challenged by Pri Megadim, Oraḥ Hayyim, Eshel Avraham 343:2. Tosafot, Ketubot 9a, s.v. ve-i ba'it eima, declare that a doubt resolved by virtue of the principle of rov, or majority, does not constitute a cognizable doubt at all. Tosafot opine that the occurrence of rape generally becomes known to the public. Hence, in a significant majority of all sexual acts that do not give rise to reports of rape, intercourse is willful. Accordingly, declare Tosafot, the contingency of rape cannot be deemed a matter of doubt for the purpose of constructing a sefek sefeika. Similarly, argues Pri Megadim, the majority of pregnancies result in viable neonates; hence the possibility of miscarriage should not constitute a doubt for purposes of generating a sefek sefeika.
R. Moshe Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 354, resolves that difficulty by pointing out that the principle of rov serves, in and of itself, to determine that in the majority of cases the woman commits no transgression in causing her fetus to be defiled. Fifty percent of all fetuses are female28This is empirically imprecise. Historically, the ratio of male births to female births has been 106 to 100. In recent years there has been a decline in the proportion of male births in North America and Western Europe. Those declines, although statistically significant, are small, with the result that there remains a plurality of male births over female births. See, for example, P. Morcelli, P.M. Thouth, P. E. Serrari et al., “Changes in Human Sex Ratio,” Lancet, vol. 355, no. 9218 (May 24, 2000), pp. 1858-1863. However, since the number of miscarriages and stillbirths is far higher than 6%, Ḥatam Sofer’s crucial point, viz., that in the majority of pregnancies the woman commits no transgression, is indeed valid. while some fetuses are not viable. The result is that in any given pregnancy there is less than a fifty percent chance that defiling the fetus entails a forbidden act.29See also R. Joseph Babad, Minḥat Ḥinnukh, no. 263. Although Rokeaḥ invokes the principle of sefek sefeika rather than rov, Hatam Sofer asserts that the principle involved is indeed that of rov and that Rokeaḥ's nomenclature is merely unfelicitous. There are indeed two separate factors to be considered—and hence Rokeaḥ's use of the term sefek sefeika—the possibility of a female fetus and the possibility of a nonviable fetus; however the two factors combine not to generate a sefek sefeika, but to generate a rov.
Acceptance of the thesis that Rokeaḥ is expressing the concept of rov rather than sefek sefeika yields yet another ramification. The putative practice of not relying upon a "double doubt" does not apply to not relying upon rov. Hatam Sofer himself, Oraḥ Hayyim, no. 83, forcefully comments, "He who commanded and admonished us with regard to the treifah is He who commanded us to rely upon rov."30See also Pitḥei Teshuvah, Yoreh De’ah 116:10 as well as R. Moses Luria, Avnei Shoham, Ḥullin (Jerusalem, 5747), I, no.1.
Magen Avraham, Oraḥ Hayyim 346:2, takes issue with the basic principle upon which Rokeaḥ's comment is based. As noted, Rokeaḥ assumes that it is forbidden to cause defilement not only to a minor but also to a fetus. Magen Avraham challenges that assumption on technical grounds. One of the principles governing defilement as recorded in the Mishnah, Oholot 5:4, is that a "swallowed" (balu'ah) object can neither defile nor become defiled. Thus, for example, if a person swallows a metal ring and then enters a room in which a corpse is present, the ring is not subject to the regulations governing ritual impurity. The fetus, argues Magen Avraham, is "swallowed" within the mother's body and hence is not subject to defilement. If so, there is no reason why the pregnant wife of a kohen may not come into contact with a corpse.31Pri Megadim suggests that “swallowed” objects are subject to defilement by virtue of rabbinic decree. Teshuvot Ḥatam Sofer, Yoreh De’ah, no. 354, dismisses that contention with the observation that, assuming there is rabbinic defilement of that nature, such defilement is not necessarily prohibited even to the kohen just as, for example, there is no prohibition against a kohen defiling himself by contact with a metal object defiled by a corpse. There is certainly no evidence of a specific rabbinic decree forbidding tum’ah balu’ah to a kohen.
R. David ibn Zimra, Teshuvot Radvaz, I, no. 200, resolves the problem by postulating that Rokeaḥ's concern was limited to situations involving a pregnant woman approaching term. In such situations there is reason to fear that labor may commence at any time and hence that the child's head may enter the birth canal in the early stages of parturition while the woman is yet under the same roof as the corpse. Since, for purposes of Jewish law, the child is considered to be "born" when the major portion of the forehead enters the birth canal, the child would no longer be deemed "swallowed" within the mother's abdomen and hence would become subject to defilement. A similar observation is made by Netiv Hayyim in a marginal comment on Magen Avraham, ad locum. According to those authorities, Rokeaḥ had no need to justify contact with a corpse on the part of a pregnant woman during earlier periods of gestation since the fetus will assuredly remain entirely within her body; the need for justification was limited to the final stage of pregnancy when there is reason to fear that the infant's head may emerge.
R. Jacob Emden, She'ilat Ya'avez, II, no. 177, advances a completely opposite interpretation of Rokeaḥ's position. She'ilat Ya'avez contends that Rokeaḥ's comment is designed to justify contact with a corpse only during early stages of pregnancy but that, according to Rokeaḥ, the pregnant wife of a kohen is indeed forbidden contact with a corpse during the ninth month of pregnancy. As does Hatam Sofer, She'ilat Ya'avez dismisses the notion of sefek sefeika on the grounds that, since the majority of pregnancies do not result in either a miscarriage or stillbirth, the possibility of a non-viable fetus does not constitute a halakhically cognizable doubt. Hence contact with a corpse during the ninth month, when emergence of the forehead is a distinct possibility, is forbidden. Rokeaḥ, he contends, was concerned with establishing the permissibility of such contact only during earlier stages of pregnancy.
Such justification is necessary, argues She'ilat Ya'avez, because, in order to obviate error and confusion, the Gemara, Hullin 72a, in a different context, extends the rules cogently applicable during the ninth month of pregnancy to earlier stages of pregnancy as well. Ostensibly, that consideration should also apply in the case of a pregnant wife of a kohen. Accordingly, explains She'ilat Ya'avez, Rokeaḥ intended to explain that contact with a corpse is not prohibited during earlier stages of pregnancy lest the pregnant woman assume that such contact is permitted during the final stages of pregnancy as well. She'ilat Ya'avez asserts that Rokeaḥ reasons that no such ban is applicable because of the remote nature of the concern, i.e., there is no actual concern in the earlier stages of pregnancy because the fetus' head is unlikely to emerge from the uterus and, even were the woman to place herself in such a situation during the final stages of pregnancy, the fetus may be either female or nonviable. In effect, as does Hatam Sofer, albeit for a different reason, She'ilat Ya'avez understands Rokeaḥ as declaring simply that the contingency that is the subject of concern is remote and hence not a matter of halakhic concern, but not as contending that the principle of sefek sefeika is technically applicable.
R. Chaim Joseph David Azulai, Birkei Yosef, Oraḥ Hayyim 343:4, rejects the applicability of the principle of tum'ah balu'ah on the basis of the talmudic opinion, Gittin 23b, that maintains that the fetus is deemed to be an integral part of the mother's body (ubbar yerekh imo). As recorded by R. Jacob Ettlinger, Teshuvot Binyan Ẓion, no. 96, R. Pinchas Shiffer, writing to Rabbi Ettlinger, explains that Birkei Yosef's contention is that the fetus cannot be considered to be "swallowed" since it is an integral part of the mother's body. Nevertheless, since the gender of the fetus is male rather than female, the fetus is subject to the rules governing defilement.
Binyan Ẓion dismissively rejects that understanding of Birkei Yosef on the grounds that to declare the fetus to be an integral part of the mother's body but to have the status of a male is a contradictory assertion. Hatam Sofer, in his previously cited responsum, without citing Birkei Yosef, reports that he had earlier considered the issue of tum'ah balu'ah as inapplicable, at least prior to commencement of labor, because of the principle ubbar yerekh imo. However, upon reflection, Hatam Sofer declares that he has reversed his earlier view because of the pronouncement of the Gemara, Yevamot 67a, that "a fetus in the womb of a non-kohen is a non-kohen," i.e., priestly status, and hence the applicability of the prohibition against defilement, devolves upon the fetus only upon parturition.
R. Moshe Sternbuch, Teshuvot ve-Hanhagot, I, Yoreh De'ah, no. 679, quotes the Brisker Rav, R. Yitzchak Ze'ev Soloveitchik, as advancing an entirely opposite view in stating that a male fetus does indeed have the status of a kohen. The statement of the Gemara to the effect that the fetus is not a kohen is limited, he contends, to laws of terumah, viz., although the mother of a kohen may partake of terumah, a women carrying a fetus who is a kohen may not partake of terumah. The fetal kohen, according to this analysis, enjoys the status of a kohen, particularly with regard to matters of defilement, but is not a kohen who can cause his mother to become eligible to partake of terumah.
Minḥat Hinnukh, no. 263, espouses a diametrically opposed position in maintaining that even were the fetus to be regarded as rendering its mother eligible to partake of terumah, the fetus itself, since it is an integral part of the mother's body, is not subject to strictures concerning defilement.
Binyan Ẓion himself offers a novel interpretation of Birkei Yosef's position. The fetus, as an integral part of the mother's body, becomes defiled together with its mother. But since there is no prohibition against defilement of the mother, such defilement as part of the mother's body is entirely innocuous. However, defilement to which a fetus is subjected during pregnancy persists subsequent to parturition. Accordingly, contends Binyan Ẓion, Rokeaḥ was concerned that upon birth it becomes retroactively clear that, in coming into contact with a corpse while pregnant, the mother caused prohibited future defilement of a kohen. Although no transgression is incurred until the fetus is actually separated from the mother, the earlier act causing future defilement of a kohen would be prohibited save for the principle of sefek sefeika.
Avnei Milu'im 82:1 dismisses the issue of tum'ah balu'ah by citing the rule that immersion of a pregnant woman for purposes of conversion ipso facto constitutes immersion of the child as well despite the fact that the mother's body serves as a ḥazizah, or interposition, preventing the water of the mikveh from coming into direct contact with the child. The Gemara, Yevamot 88b, explains that the mother's body is not an interposition because "that is the way it grows" (hainu reviteih), i.e., only a foreign object constitutes an interposition whereas the mother's body in which the fetus gestates is hardly alien to the fetus.
In effect, Avnei Milu'im postulates that the reason a "swallowed" object is not subject to defilement is because the object in which it is encased serves as an interposition between the object and the source of defilement. The mother's body, however, does not constitute such an interposition.
R. Samuel ha-Levi Woszner, Teshuvot Shevet ha-Levi, II, Yoreh De'ah, no. 25, challenges Avnei Milu'im's equation of the principle of tum'ah balu'ah with the notion of interposition. The Mishnah, Niddah 43b, declares that a newborn child can become defiled through contact with a corpse. The Mishnah clearly excludes defilement of the fetus in utero. As explained by Mishnah Aḥaronah, ad locum, the reason is that prior to parturition the fetus is "swallowed" within the womb and, accordingly, is not subject to defilement. Hence, Magen Avraham's puzzlement with regard to Rokeaḥ's comment is well-founded.
R. Elchanan Wasserman, Kovez Shi'urim, II, no. 41, resolves the problem in a highly original manner. Reb Elchanan maintains that a kohen is forbidden contact with a corpse even in circumstances in which he does not becomes defiled. In support of that thesis he cites the halakhic provision prohibiting a kohen from being in the same building as a goses, i.e., a moribund person, despite the fact that the kohen does not become defiled by virtue of his presence in that building. A fetal kohen "swallowed" in his mother's body, contends Reb Elchanan, is indeed in the same building as the corpse and is forbidden to be in that building even though he does not thereby become defiled.32Reb Elchanan clearly maintains that tum’ah balu’ah is not rooted in the concept of interposition, but is simply a divine edict.
At present, many obstetricians perform sonograms upon pregnant women for cogent medical reasons. Although performed for other purposes, such sonograms generally reveal the gender of the fetus. If the fetus is a male, and its gender is disclosed to the mother, Rokeaḥ's sefek sefeika no longer exists since the fetus is known with virtual certainty to be male. Obviously, according to Radvaz, Hatam Sofer and Netiv Yam who assert that Rokeaḥ was concerned only with regard to a woman in labor or approaching term, there is no problem with regard to defilement during earlier stages of pregnancy. However, according to the authorities who regard a sefek sefeika to be necessary even during earlier stages of gestation, the wife of a kohen whose sonogram has revealed that she is carrying a male fetus would be forbidden to come into contact with a corpse other than in situations of pikuaḥ nefesh.33Delivery itself, in this writer’s opinion, may take place in a hospital because parturition is categorized by Halakhah as a threat to the life of the mother and the danger, again in this writer’s opinion, is significantly mitigated by delivery in a hospital. See, for example, Jenny W.Y. Pang, James B. Heffelfinger, Greg J. Huang et al., “Outcomes of Planned Home Births in Washington State: 1989-1996,” Obstetrics and Gynecology, vol. 100, no. 2 (August, 2002), pp. 253-259. See also S.L. Barron, P. Blain, C.H.W. Bullough et al., “Collaborative Survey of Perinatal Loss in Planned and Unplanned Home Births,” British Medical Journal, vol. 313, no. 7068 (November 23, 1996), pp. 1306-1309, and “Digests: Health of Mothers, Babies May Be Compromised in Planned Home Births,” Perspectives on Sexual and Reproductive Health, vol. 34, no. 6 (December, 2002), pp. 320-321. This view is indeed disputed by some. See, for example, O. Olsen, “Meta-Analysis of the Safety of Home Birth,” Birth, vol. 24, no. 1 (March, 1997), pp. 4-14; Ursula Ackerman-Liebich, Thomas Voegeli, Katherin Gunter-Witt, “Home Versus Hospital Deliveries: Follow Up Study of Matching Pairs for Procedures and Outcome,” British Medical Journal, vol. 313, no. 7068 (November 23, 1996), pp. 1315-1318; and Kenneth C. Johnson and Betty-Annie Daviss “Outcomes of Planned Homebirths with Certified Professional Midwives: Large Prospective Study in North America,” British Medical Journal, vol. 330, no. 7505 (June 18, 2005), pp. 1416-1423. A patient suffering from a life-threatening condition—and labor and childbirth are categorized by Halakhah as life-threatening—may seek the ministration of a medical practitioner in whom he or she has greater confidence, despite attendant violation of religious law that would be incurred, even if an equally qualified practitioner might render the same care without such violation. See R. Joshua Neuwirth, Shemirat Shabbat ke-Hilkhatah, 2nd ed. (Jerusalem, 5739) 32:38.
The situation of a woman who has undergone a sonogram but who has not been informed of the fetus' gender is somewhat different. To her, there is a sefek sefeika but one of those doubts might be resolved by means of a simple inquiry. Pri Megadim, Siftei Kohen, Yoreh De'ah 110, Kelalei Sefek Sefeika 35:66, rules that when "mere inquiry" would resolve the doubt, it is obligatory to solicit such information. The crucial question, now that sonograms are available, and if they are to be regarded as posing no hazard to the health of either the mother or the fetus,34Basic research on harnessing the Doppler effect in the use of ultrasound waves for medical diagnostics was performed more than sixty years ago by the Viennese neurologist K.T. Dussik. See K. Dussik, “Über die Möglichkeit hochfrequente mechanische Schwingungen als diagnostiches Hilfsmittel zu verwerten,” Zeitschrift für de gesamte Neurologie und Psychiatrie, vol. 174 (1942), pp. 153-168. As a result ultrasound became a primary exploration technique in obstetrics and gynecology and gained wide acceptance because of the absence of any known side-effects. See J.P. Schaaps, “L’Ethographie et la Gynecologie-Obstetrique: Du Bistable au 3D,” Revue Médicale de Liège, vol. 54, no. 5 (2002), pp. 401-408; G.C. Mason, R.J. Lilford, J. Porter et al., “Randomised Comparison of Routine Versus Highly Selective Use of Ultrasound in Low Risk Pregnancies,” British Journal of Obstetrics and Gynecology, vol. 100, no. 2 (February, 1993), pp.130-133; and J.S. Abramowicz, G. Kossoff, K. Marsal et al., “Safety Statement, 2000 (reconfirmed 2003),” International Society of Ultrasound in Obstetrics and Gynecology (ISUOG), Ultrasound in Obstetrics and Gynecology, vol. 21, no. 1 (January, 2003), p. 100. Although four separate studies revealed an increase in left-handedness related to prenatal ultrasound exposure, that phenomenon has been dismissed as innocuous by some researchers. See K.A. Salveson, “Ultrasound and Left-handedness: A Sinister Association?” Ultrasound in Obstetrics and Gynecology, vol. 19, no. 3 (March, 2002), pp. 217-221; and J.S. Abramowicz, G. Kossoff, G. Marsal et al., “Literature Review by the ISUOG Bioeffects and Safety Committee,” Ultrasound in Obstetrics and Gynecology, vol. 19, no. 3 (March, 2002), pp. 318-319. Others, however, have expressed concern that the phenomenon may be a sign of effect of ultrasound upon the brain. See H. Kieler, S. Cnattingius, B. Haglund et al., “Sinistrality—a Side-Effect of Prenatal Sonography: A Comparative Study of Young Men,” Epidemiology, vol. 12, no. 6 (November, 2001), pp. 618-623; and idem, “Ultrasound and Adverse Effects,” Ultrasound in Obstetrics and Gynecology, vol. 20, no.1 (July, 2002), pp. 101-102.
In recent years the power outputs of clinical devices have increased with the result that the potential for both thermal and non-thermal insults has become greater. The risk of inducing thermal effects is greater in the second and third trimesters while sheer stresses from radiation pressure may be of concern in early gestation. The likelihood of producing undesired biological effects can be enhanced by new procedures such as use of gas encapsulated echocontrast agents. See S.B. Barnett and D. Maulik, “Guidelines and Recommendations for Safe Use of Doppler Ultrasound in Perinatal Applications,” Journal of Maternal-Fetal Medicine, vol. 10, no. 2 (April, 2001), pp. 75-84; M.C. Ziskin and S.B. Barnett, “Ultrasound and the Developing Central Nervous System,” Ultrasound in Medicine and Biology, vol. 27, no. 7 (July, 2001), pp. 875-876; and S.B. Barnett, “Routine Ultrasound Scanning in First Trimester: What Are the Risks?” Seminars in Ultrasound, CT and MR, vol. 23, no. 5 (October, 2002), pp. 387-391. One recent study concludes that the data available to date suggest that diagnostic ultrasound has no adverse effect on embryogenesis or fetal growth and that thermal effect probably does not influence fetal development but, while endorsing B and M mode during the first trimester, concludes that color, pulsed or power Doppler be performed with caution. See R. Hershkovitz, E. Sheiner and M. Mazor, “Ultrasound in Obstetrics: A Review of Safety,” European Journal of Obstetrics and Gynecology and Reproductive Biology, vol. 101, no. 1 (February 10, 2002), pp. 15-18. A number of researchers have advised that obstetrical ultrasound be undertaken only for medical reasons and that exposure should be kept as low as reasonably achievable. See, for example, S. Westin and L. S. Bakketeig, “Unnecessary Use of Ultrasound in Pregnancy Should be Avoided. Probably Safe, But New Evidence Suggests Caution,” Scandinavian Journal of Primary Health Care, vol. 21, no. 2 (June, 2003), pp. 65-67; S. Bly and M.C. Van den Hof, “Obstetric Ultrasound Biological Effects and Safety,” Journal of Obstetrics and Gynecology, Canada, vol. 27, no. 6 (June, 2005), pp. 572-580; and L. Morin and M.C. Van den Hof, “Ultrasound Evaluation of First Trimester Pregnancy Complications,” ibid., pp. 581-591. is whether the pregnant wife of a kohen is obligated to undergo a sonogram before coming into contact with a corpse. Shakh, Yoreh De'ah 110, Kelalei Sefek Sefeika, sec. 35:66, records two opinions with regard to whether a sefek sefeika may be relied upon in circumstances in which the "double doubt" may be dispelled on the basis of examination or investigation. Shakh rules that it is necessary to be stringent "when [it is] possible and no loss is incurred." R. Shlomoh ha-Kohen of Vilna, Teshuvot Binyan Shlomoh, no. 13, similarly maintains that a sefek sefeika that may be resolved cannot be relied upon.35See also Sedei Ḥemed, ma’arekhet ha-samakh, no. 29. Nevertheless Shakh rules that no investigation is necessary if such investigation would entail expense. A sonogram, presumably, does entail such an expense.
R. Ezekiel Landau, Teshuvot Noda bi-Yehudah, Mahadura Kamma, Yoreh De'ah, no. 43 and no. 97, maintains that even the authorities who require resolution of the doubt posed by a sefek sefeika when such doubt can be resolved by inquiry or investigation do so only when both doubts can be resolved, but not if one of the doubts will persist even subsequent to the investigation. In the case of a pregnant woman, the doubt with regard to the viability of the fetus would indeed remain since it is not dispelled by means of a sonogram. However, according to Hatam Sofer's understanding of Rokeaḥ, since the vast majority of fetuses are viable, the operative consideration is not sefek sefeika but the consideration that the majority of fetuses are not viable males. According to Hatam Sofer, the principle actually relied upon is that of rov. The general rule is that a rov may be relied upon even when examination is possible except in instances in which there is a mi'ut ha-mazui, i.e., a significant number of exceptions to the rov.36For an explication of mi’ut ha-maẓui see chapter 7 of this volume, pp. 245-246. The incidence of viable male fetuses is certainly a mi'ut ha-mazui and, accordingly, examination for gender should be required according to Hatam Sofer. If the fetus is shown to be male, the principle of rov serves to establish that the overwhelming majority of fetuses are viable.
Examination for a mi'ut ha-mazui is required only when such examination is possible. Thus, for example, Shulḥan Arukh, Yoreh De'ah 39:2 rules that a slaughtered animal whose lungs have been lost or misplaced prior to examination for adhesions37Examination of the lungs of a slaughtered animal is the paradigm for the requirement of examination in instances of a mi’ut ha-maẓui. See, for example, Rashi, Ḥullin 12a, s.v. Pesaḥ. may be regarded as kosher on the basis of rov.38Cf., Rema, Yoreh De’ah 39:2. Rema’s stringency, however, is not applicable to the matter under discussion. See Shakh, Yoreh De’ah 39:8. It is certainly not permissible to perform an ultrasound test solely to determine gender if the procedure is accompanied by any cogent medical risk,39See supra, note 34. with the result that such examination is, in the halakhic sense, "impossible." A determination regarding the safety of the procedure can be made only by a physician familiar with the available data and is subject to revision as more information becomes available.